Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/evolutionofparliOOpollrich 


THE  EVOLUTION 
OF   PARLIAMENT 


BY 


A.  F.  POLLARD,  M.A.,  Litt.D.,  F.B.A. 

FELLOW    OF    ALL   SOULS'  COLLEGE,   OXFORD,    AND   PROFESSOR   OF 
ENGLISH  HISTORY   IN  THE  UNIVERSITY   OF  LONDON 


WITH  ILLUSTRATIONS 


\:..::v::-vSHi,' ; 


LONGMANS,    GREEN    AND    CO 

39    PATERNOSTER     ROW,    LONDON 

FOURTH  AVENUE  &  SOth  STREET,  NEW  YORK 

BOMBAY,    CALCUTTA,    AND    MADRAS 

1920 


PARLIAMENT   IN   1523. 


PREFACE 

This  volume  is  the  outcome  of  studies  which  were  turned 
in  the  direction  of  constitutional  history  partly  by  my 
appointment  to  a  chair  with  that  title  at  University  College, 
London,  in  1903,  and  more  specifically  by  my  election  in 
1908  to  a  fellowship  at  All  Souls'  College,  Oxford,  on  con- 
dition of  pursuing  researches  suggested  by  the  late  F.  W. 
Maitland.  The  first  sketch  of  this  essay  took  the  form  of 
six  public  lectures  delivered  in  London  in  Lent  Term  1913, 
which  were  expanded  into  fifteen  lectures  given  on  the 
Goldwin  Smith  foundation  at  Cornell  University  and  else- 
where in  the  United  States  in  the  following  spring.  The 
manuscript  was  completed,  save  for  some  notes  and  refer- 
ences, in  August  1915,  when  the  increasing  tension  of  the 
war  put  a  stop  to  remoter  studies. 

During  these  seventeen  years  the  history  of  the  English 
parliament  has  attracted  the  labour  of  several  learned 
historians,  and  particular  acknowledgement  is  due  to  Pro- 
fessor C.  H.  Mcllwain's  High  Court  of  Parliament,  which, 
coming  into  my  hands  at  the  end  of  1912,  confirmed  the 
trend  of  my  investigations  and  supplied  me  with  fresh  ideas 
and  illustrations.  Another  American  book.  Professor  Bald- 
win's Kings  Council  in  the  Middle  Ages,  pubHshed  in  1914, 
threw  valuable  light  on  a  collateral  subject.  But  the 
starting-point  for  all  of  us  has  been  Maitland 's  introduction 
to  the  Memoranda  de  Parliamento,  which  he  edited  for  the 
Rolls  Series  in  1893,  the  most  original  and  suggestive  essay 


VI 


PREFACE 


that  has  ever  been  written  on  the  medieval  EngHsh  par- 
hament.  There  would  have  been  less  reason  for  this  book, 
had  that  essay,  which  is  still  on  sale  in  its  original  limited 
edition,  not  been  buried  in  the  Rolls  Series,  excluded  from 
disinterment  in  Maitland's  Collected  Papers,  and  generally 
ignored  by  English  instructors  of  youth  for  nearly  a 
generation. 

A  student  who  is  mainly  versed  in  the  history  of  the 
sixteenth  century  must,  however,  if  he  trespasses  on  the 
middle  ages,  be  ready  to  face  prosecution  with  all  the 
rigour  of  medieval  lore;  and  this  volume  cannot  escape 
criticism  of  its  lack  of  technical  knowledge  in  many  details. 
My  excuse  for  the  trespass  is  that,  being  engaged  on  a 
study  of  the  Tudor  constitution,  I  could  not  understand  it 
without  seeking  answers  to  preliminary  problems  which  had 
not  been  solved ;  and  historical  curiosity  combined  with  an 
academic  interest  in  politics  to  expand  an  introduction  to 
the  constitutional  history  of  the  Tudor  period  into  an  essay 
on  the  place  of  parliament  in  the  past,  the  present,  and 
the  future  of  the  English  state.  The  last  two  chapters  at 
least  of  this  volume  are  not  history;  but  I  doubt  the  logic 
and  the  expedience  of  the  contention  that  it  is  only  the 
business  of  those  who  have  not  studied  the  past  to  discuss 
the  present  or  the  future. 

The  book  is  less  a  history  of  parliament  than  a  suggestion 
of  the  lines  upon  which  it  should  be  written,  and  rather 
an  indication  of  the  research  that  is  still  required  than  of 
that  which  has  yet  been  done.  Few  of  the  conclusions 
here  tentatively  outlined  can  be  established  without  pro- 
longed research  by  many  scholars ;  but  happily  the  prospect 
of  a  school  of  historical  research  is  not  so  distant  as  it  was. 
Meanwhile,  I  have  to  express  my  deep  obligations  to  the 
fellow-workers  who  have  attended  the  formal  and  informal 


PREFACE  vii 

meetings  held  at  University  College  during  the  last  six  years 
to  discuss  various  problems  of  historical  research,  and  to 
whom  I  owe  many  suggestions,  references,  and  corrections. 
A  list  of  acknowledgements  would  be  long  and  invidious, 
but  I  cannot  repress  a  word  of  thanks  to  Miss  Jeffries 
Davis,  Lecturer  in  the  Sources  of  English  History  at 
University  College,  whose  contribution  to  the  value  of  those 
discussions  has  been  crowned  by  a  card-index  of  references 
to  the  materials  for  English  parliamentary  history,  which 
is  available  for  all  who  care  to  consult  it.  It  is  not,  of 
course,  complete;  and  possibly  its  most  fruitful  function 
may  be  to  indicate  the  need  and  value  of  similar  registers 
of  historical  materials  already  printed  or  preserved  in  British 
archives. 

A.  F.  Pollard. 
April  23,  1920. 


CONTENTS 


CHAP. 
I. 


II. 


J 

i     J\\\. 

IV. 

V. 

VI. 

VII. 

VIII. 

IX. 

X. 

XI. 

XII. 

XIII. 

XIV. 

XV. 

XVI. 

XVII. 

XVIII. 


THE    PLACE    OF   PARLIAMENT   IN    HISTORY  . 

THE   HIGH    COURT    OF   PARLIAMENT     . 

EDWARD    I'S    PARLIAMENTARY   MODELS 

THE    MYTH    OF    THE    THREE    ESTATES 

THE    FICTION    OF   THE    PEERAGE 

THE    GROWTH   OF   THE    HOUSE    OF    COMMONS 

PARLIAMENT   AND   NATIONALISM 

THE    GROWTH   OF  REPRESENTATION 

PARLIAMENT   AND    LIBERTY 

PARLIAMENT   AND   THE    CHURCH 

THE   GROWTH    OF   SOVEREIGNTY   IN 

THE    SEPARATION    OF   POWERS 

THE    CROWN    IN    PARLIAMENT    .  »^ 

THE    COUNCIL    IN    PARLIAMENT 

THE   PEERS   IN    PARLIAMENT  v^ 

THE    COMMONS    IN    PARLIAMENT 

THE    STATE   IN    PARLIAMENT      . 

THE   BRITISH   REALMS    IN    PARLIAMENT 

APPENDIX ^PICTURES   OF   PARLIAMENT 

INDEX  ..... 


PARLIAMENT 


IX 


LIST   OF    ILLUSTRATIONS 

Parliament  in   1523       .  .  .  .  .  Frontispiece 

Parliament  in  1585  .....  To  face  page  121 
Parliament  in  the  Seventeenth  Century  .  „  ,,  163 
Parliament  in  1742  .  .  .  .  .  „  „  277 
Plan  of  the  Houses  of  Parliament,  Westminster  Hall 

AND    THE    adjacent    PuBLIC    BuILDINGS,    BY    SiR    JOHN 

SoANE,  March  22,   1833  ....  To  face  page     333 


THE    EVOLUTION   OF 
PARLIAMENT 

CHAPTER  I 

THE  PLACE   OF  PARLIAMENT    IN    HISTORY 

In  the  best-known  life  of  one  historian  by  another  there 
is  a  passage  which  combines  the  views  of  two  writers  of 
genius  on  the  modern  value  of  parliamentary  institutions. 
**  He  spoke  much,"  writes  Froude  of  Carlyle,  "  on  politics 
and  the  character  of  public  men.  From  the  British  Parlia- 
ment he  was  firmly  persuaded  that  no  good  could  be  looked 
for.  A  democratic  Parliament,  from  the  nature  of  it,  would 
place  persons  at  the  head  of  affairs  increasingly  unfit  to 
deal  with  them.  Bad  would  be  followed  by  worse,  and 
worse  by  worst,  till  the  very  fools  themselves  would  see  that 
the  system  must  end.  Lord  Wolseley,  then  Sir  Garnet, 
went  with  me  once  to  call  in  Cheyne  Row,  Carlyle  having 
expressed  a  wish  to  see  him.  He  was  much  struck  with  Sir 
1  net,  and  talked  freely  with  him  on  many  subjects.  He 
-cribed  the  House  of  Commons  as  '  six  hundred  talking 
asses,  set  to  make  laws  and  to  administer  the  concerns  of 
the  greatest  empire  the  world  had  ever  seen,'  with  other 
uncomplimentary  phrases.  When  he  rose  to  go,  he  said, 
*  Well,  sir,  I  am  glad  to  have  made  your  acquaintance,  and 
I  wish  you  well.  There  is  one  duty  which  I  hope  may  be 
laid  upon  you  before  you  leave  this  world — ^to  lock  the  door 
of  yonder  place,  and  turn  them  all  about  their  business/  "  ^ 

1  Froude,  Carlyle's  Life  in  London,  ii.  446. 


THE'UX^O^UTION  OF  PARLIAMENT 


Ci'oniWeli -hiriiseK '  was^not  infected  with  his  biographer' 
contempt  of  parliamentary  institutions,  and  Carlyle  repre 
sents  the  Homeric  age  of  historical  science.  Hero-worshi 
is  impatient  of  constitutional  government,  and  its  votarie 
are  unfitted  by  temperament  to  measure  the  value  of  parlis 
ments.  But  the  critics  are  not  confined  to  the  ranks  c 
archaic  admirers  of  force,  and  the  permanence  of  the  Britis 
parliament  itself  is  doubted  by  advanced  students  of  moder 
politics  English  publicists  have  speculated  without  horror  o 
the  abolition  of  the  house  of  commons,  and  Americans  hav 
described  the  sovereignty  of  parliament  as  a  phanton 
"  It  may  well  be  doubted,"  writes  one,  **  whether  the  doctrin 
of  Parliamentary  sovereignty,  in  any  form  that  means  mucl 
can  long  survive  the  triumph  of  democracy.  .  .  .  When  th 
Referendum  really  comes,  the  sovereign  Parliament  must  g( 
But  whether  for  good  or  for  evil,  the  Referendum,  in  princip] 
at  least,  seems  to  be  coming."  ^  To  the  advocates  of  th 
referendum  and  the  believers  in  the  sovereignty  of  fore 
must  be  added  the  bureaucrat  and  the  S3nidicalist ;  and  th 
hfe  of  parliament  might  seem  to  depend  upon  that  mutuj 
antagonism  of  its  enemies  which  destroys  the  cumulativ 
force  of  their  attacks.  But  even  extinct  monsters  hav 
their  scientific  interest,  and  if  it  were  true  that  parliamen 
has  run  its  course  of  public  utility,  that  fact  would  make  i 
all  the  easier  to  determine  its  place  in  history. 

It  is  possible,  however,  that  a  re-examination  of  th 
various  functions  which  parliament  has  fulfilled  in  the  pas 
may  lead  to  a  less  pessimistic  view  of  its  future,  and  tha 
the  dissolution  which  seems  so  patent  to  some  observer 
is  merely  another  transformation.  If,  indeed,  we  regar 
parliament  as  having  been  a  fixed  institution  and  apply  t 
it  architectural  metaphors  like  foundations,  corner-stones 
and  so  forth,  signs  of  change  must  need  appear  to  be  symp 
toms  of  decay.  But  fortunately  for  itself  parliament  ha 
never  attained  that  rigidity,  which  appeals  to  the  artist  i: 
bricks  and  mortar  but  strikes  the  student  of  life  as  a  proc 
of  death ;  and  has  eluded  all  efforts  to  stereotype  its  con 
*  Mcllwain,  The  High  Court  of  Parliament,  p.  xv. 


THE  PLACE  OF  PARLIAMENT  IN  HISTORY  3 

stitution  which,  if  successful,  would  have  had  the  effect  of 
encasing  a  living  heart  in  plaster  of  Paris.  For  political 
institutions  that  stand  the  test  of  time  are  organisms  sub- 
sisting upon  their  adaptability  to  their  environment  and 
ever  changing  with  the  conditions  of  their  existence.  Parlia- 
ment is  not  bound  up  with  any  political  theory  or  any 
transient  constitution;  it  has  been  the  tool  of  monarchs, 
of  oligarchs,  and  of  democrats;  it  has  been  the  means 
of  opposition  as  well  as  the  instrument  of  government, 
the  preventive  of  revolution  as  well  as  the  promoter  of 
reform.  It  has  been,  and  is  still  to  some  extent,  a  court 
of  law,  a  council,  and  a  legislature;  and  its  forms,  which 
were  used  by  medieval  kings,  have  been  found  still  more 
effective  by  modern  ministers.  Its  elasticity  has  known 
no  bounds  in  the  past,  and  we  have  yet  to  learn  that  it  has 
no  value  for  the  forces  of  the  future.  The  faith  of  men  in 
what  can  be  done  by  act  of  parliament  is  assuredly  not  on 
the  wane;  and  the  mother  of  parliaments  has  seen  her 
progeny  spread  into  every  civilized  quarter  of  the  globe. 

Parliamentary  institutions  have,  in  fact,  been  incom- 
parably the  greatest  gift  of  the  English  people  to  the  civi- 
lization of  the  world.  Civilized  man  has  drawn  his  religious 
inspirations  from  the  East,  his  alphabet  from  Egypt,  his 
algebra  from  the  Moors,  his  art  and  literature  mainly  from 
Greece,  and  his  laws  from  Rome.  But  his  pohtical  organ- 
ization he  owes  mostly  to  English  conceptions,  and  constitu- 
tional systems  all  over  the  world  are  studded  with  words  and 
phrases  which  can  only  be  explained  by  reference  to  the 
medieval  English  parliament.  Other  nations  have  had 
their  indigenous  representative  systems,  but  they  have  all 
been  abandoned  or  profoundly  modified  under  the  influence 
of  English  ideas;  and  reichstag  and  duma,  riksdag  and 
storthing,  sobranje  and  meiljiss  are  none  of  them  the 
purely  native  products  their  names  would  imply.  Here  and 
there  the  grafting  has  not  been  successful,  but  the  failure 
of  parliamentary  institutions  in  Semitic  and  negroid  com- 
munities is  proof,  not  of  the  defects  of  parliaments  but  of 
the  political  incapacity  of  those  who  cannot  work  them 


4  THE  EVOLUTION  OF  PARLIAMENT 

As  a  rule  the  political  genius  of  a  nation  may  fairly  be 
judged  by  the  success  of  its  representative  system. 

And  this  is  a  valid  criterion  because  parliament  is  the 
only  expedient  by  which  any  degree  of  self-government  can 
be  combined  with  the  organization  of  a  national  state. 
The  cities  of  ancient  Greece  and  of  medieval  Italy  governed 
themselves  without  the  assistance  of  parliaments  because 
they  were  small  enough  for  direct  popular  participation  in 
the  sovereign  functions  of  administration,  discussion,  and 
legislation.  But  when  the  ancient  city  state  expanded  into 
the  empires  of  Alexander  and  Caesar,  self-government  dis- 
appeared, because  representation  had  not  been  invented, 
and  multitudinous  peoples  could  not  appear  in  person.  It  is 
a  small  community  that  can  govern  itself  without  repre- 
sentation. Great  states  can  exist  without  parliaments,  but 
without  them  their  people  cannot  govern  themselves.  City 
states  can  enjoy  popular  self-government  without  representa- 
tion, but  they  cannot  expand  without  losing  their  liberty; 
and  the  threadbare  theme  that  a  democracy  cannot  govern 
an  empire  only  holds  good — ^like  other  classical  gibes  at 
democracy — of  popular  rule  without  representation.  It  is 
one  of  the  ironies  of  politics  that  those,  who  have  derived 
from  the  study  of  ancient  history  a  prejudice  against  demo- 
cratic government,  should  often  be  so  anxious  to  reproduce, 
by  means  of  the  plebiscite  and  referendum,  that  direct  and 
commonly  thoughtless  popular  action  which  was  responsible 
for  the  prejudice.  For  it  was  by  the  growth  of  parliament, 
which  the  referendum  would  undermine,  that  the  incom- 
patibility between  imperium  and  libertas  was  removed,  the 
oscillations  of  popular  passion  corrected  or  checked,  and 
the  ancient  indictment  of  the  schools  against  democracy 
rendered  obsolete. 

Parliament,  indeed,  has  been  the  means  of  making  the 
English  nation  and  the  English  state.  It  is  really  co-eval 
with  them  both.  There  was,  it  is  true,  an  England  centuries 
before  there  was  a  parliament,  but  that  England  was  little 
more  than  a  geographical  expression.  It  was  hardly  a 
nation,  still  less  a  state ;  and  Edward  I  was  the  first  English 


THE   PLACE  OF  PARLIAMENT  IN  HISTORY  5 

king  of  an  English  people  that  could  be  described  as  even 
partially  united  and  conscious  of  its  unity.  The  un- 
blushing patriotism  which  discovered  in  Alfred  the  Great 
the  founder  of  Oxford  university  was  not  less  historical  than 
the  crude  Teutonism  which  saw  in  the  Anglo-Saxon  period 
the  golden  age  of  English  nationality,  and  pictured  before 
the  Norman  Conquest  a  free,  self-governing  people,  com- 
bining the  vigour  of  primitive  virtue  with  the  perfection  of 
radical  principles.  Alfred  himself  was  a  Saxon  king  who 
was  hardly  made  English  by  the  conquest  of  half  the  English 
kingdom  of  Mercia.  The  fyrd  was  the  people  in  arms,  but 
the  people  were  tribal  folk  who  fought  for  the  most  part 
against  their  Anglo-Saxon  neighbours;  the  duty  of  self- 
defence  was  a  local  and  not  a  national  obligation;  and,  so 
long  as  it  lasted,  the  fyrd  could  not  be  summoned  to  serve 
beyond  the  shire  unless  it  was  paid  by  the  king  for  doing 
what  was  not  considered  the  business  of  the  people.  Down 
to  the  time  of  Henry  II  law  was  not  Enghsh  law,  but  the  law 
of  Wessex,  the  Mercian  law,  and  the  law  of  the  Danes. 
Politics,  too,  were  local  and  provincial;  the  people  who 
lived  in  England  regarded  themselves  as  West  Saxons, 
Mercians,  or  Northumbrians,  and  even  to-day  the  older 
natives  of  the  Isle  of  Wight  speak  of  immigrants  from  the 
adjacent  Hampshire  as  "foreigners."  Kings  could  not 
make  bricks  without  straw,  and  the  material  means  for 
creating  a  national  state  were  wanting.  Roads  hardly 
existed,  communications  were  scanty,  and  administrative 
organization  was  undeveloped.  The  consciousness  of 
nationality,  without  which  there  can  be  no  national  state, 
does  not  grow  out  of  nothing;  it  needs  substantial  nourish- 
ment, and  its  provision  was  beyond  the  means  of  Anglo- 
Saxon  chieftains.  . 
The  Norman  Conquest,  despite  the  vehement  protests  ot 
Anglo-Saxon  historians,  did  in  a  real  sense  mark  the  begin- 
ning of  English  history;  and  it  is  no  mere  quibble  mat 
reckons  the  kings  of  England  post  conquestum.  Absolute 
origins  are  not,  of  course,  to  be  found  in  historical  records, 
and  for  them  we  have  to  go  back  beyond  the  conquest 


6  THE  EVOLUTION  OF  PARLIAMENT  ^ 

of  Britons  by  Angles  and  Saxons  as  well  as  beyond  the 
conquest  of  Anglo-Saxons  by  Danes  and  Normans ;  and  the 
sources  of  English  nationality,  like  those  of  great  rivers, 
are  shrouded  in  glacial  veils.  But  the  English  state  and 
the  English  nation  have  been  moulded  on  a  framework 
provided  by  Norman  and  Angevin  rulers.  Even  English 
liberties  appeared  in  an  alien  guise,^  and  there  is  hardly  a 
word  or  a  phrase  in  the  law  and  custom  of  the  British 
constitution  that  is  Anglo-Saxon  in  origin.  To  the  "  liberty 
of  the  subject  "  the  Anglo-Saxon  tongue  has  only  contributed 
the  article  and  the  preposition ;  and  "  vote,"  "  franchise,"  and 
"  suffrage  "  are  all  extraneous  terms.  Court,  council,  and 
parliament,  judge  and  jury,  inquest  and  verdict,  alike  come 
from  abroad;  and  the  Englishman  cannot  perform  a  single 
civic  or  legal  duty,  or  exercise  a  single  political  function, 
from  parish  council  to  parliament,  without  using  a  word  or 
expressing  a  thought  unknown  to  his  Anglo-Saxon  forbears. 
It  was  this  vast  importation  that  made  it  possible  to  con- 
struct our  English  state  out  of  the  raw  material  of  Anglo- 
Saxon  tribes. 

The  process  was  slow  and  painful  enough.  The  work  of 
the  Normans  and  Angevins  was  not  to  introduce  feudalism 
into  England,  but  to  organize  the  feudal  forces  already  at 
work.  This  meant  simultaneous  construction  and  destiiic- 
tion;  for  the  more  feudalism  is  organized,  the  more  it 
disappears.  Feudalism,  it  has  been  said,  implies  the  negation 
of  all  that  we  mean  by  the  state ;  ^  it  involves  local  and 
class  association,  but  national  dissociation.  Villeins  were 
bound  to  the  lord  of  the  manor,  but  almost  cut  off  from 
the  king  of  the  realm  and,  what  is  more  important,  from 
the  villeins  of  other  lords.  There  was  little  in  common, 
because  the  lord  intercepted  communications;  and  this 
privilege  of  intercepting  communications  was  the  lord's 
franchise,  his  **  liberty  "  and  his  "  honour."     It  varied  in 

^  Cf.  G.  B.  Adams,  The  Origin  of  the  English  Constitution,  p.  3  n.  : 
"  the  thesis  of  this  book  is  that  this  EngUsh  national  constitution  .  .  . 
is  a  direct  outgrowth  of  the  eariier  feudal  constitution  of  the  State"; 
Pollock  and  Maitland,  History  of  English  Law,  1895,  i-  63. 

2  H.  W.  C.  Davis,  Medieval  Europe,  p.  93. 


THE  PLACE  OF  PARLIAMENT  IN  HISTORY  y 

degree  and  extent;  sometimes  the  lord  could  exclude  the 
king's  sheriff,  take  the  royal  writs  he  bore,  and  carry  them 
out  himself;  sometimes  he  could  exclude  the  king's  writs 
altogether.  It  was  one  of  the  points  of  Magna  Carta  that 
the  king  should  hold  no  communication  with  a  lord's  villeins 
which  might  turn  to  the  lord's  disadvantage;  he  must 
neither  tallage  them  nor  hear  their  complaints  against  their 
lord;  against  him  they  had  no  locus  standi  in  the  king's 
court  or  before  the  king's  judges.  The  franchise  was  a 
petty  kingdom  which  its  lord  sought  to  render  independent, 
and  his  notion  of  liberty  was  irresponsibility  in  the 
management  of  his  own  domains. 

This  sectional  dissociation  was  no  worse  than  the  Anglo- 
Saxon  parochialism  which  it  replaced,  and  against  it  must 
be  set  the  association  enforced  by  the  Norman  kings  when 
they  insisted  upon  the  liability  of  every  tenant-in-chief  to 
attendance  at  the  king's  court  and  in  the  king's  army.  But 
this  form  of  association  tended  to  accentuate  the  dissociation 
of  class  from  class  which  became  stereotyped  in  the  con- 
tinental systems  of  estates.  In  England  it  was  chiefly 
marked  by  differentiation  in  matters  of  taxation  and  juris- 
diction. There  was  no  national  taxation  in  the  twelfth  and 
early  thirteenth  centuries ;  each  class  paid  its  own  peculiar 
kind  of  imposition.  The  military  tenants  rendered  their 
feudal  services  and  aids  and  occasionally  paid  a  special  tax 
on  land  called  the  danegeld  and  afterwards  the  carucage; 
the  merchants  paid  their  customs;  and  the  villeins  paid  in 
work  or  in  kind  the  dues  they  owed  their  lords.  But  the  ■ 
exactions  of  the  period  were  for  the  most  part  of  the  nature 
of  rent  or  legal  fines  and  not  of  taxes ;  they  arose  from  men's 
relations  with  their  landlords  rather  than  with  their  king. 
Feudal  aids  were  only  due  from  its  tenants  to  the  crown,  and 
tallage  was  owed  by  villeins  to  their  lords.  It  was  with 
rent  and  not  with  taxes  that  Magna  Carta  is  concerned, 
and  it  represented  the  greatest  and  most  successful  "  tenant-  ^ 
right  "  campaign  in  Enghsh  history. ^ 

1  It  should  be  almost  superfluous  to  refer  students  for  this  subject  to 
W.  S.  McKechnie's  Magna  Carta  (2nd  ed.,  1914)' 


8  THE  EVOLUTION  OF  PARLIAMENT 

The  Great  Charter  was  wrested  from  John  by  a  momentary 
coalition  of  various  classes  provoked  by  exceptional  tyranny, 
and  its  historical  importance  lies  in  its  anticipation  of  the 
means  by  which  common  action  afterwards  checked  despotic 
tendencies.  But  it  required  parliament  to  focus  centrifugal 
forces  and  perpetuate  common  activity.  Its  principal  value 
in  the  middle  ages  did  not  consist  in  the  ability  of  its 
members  or  in  the  wisdom  of  their  legislation,  for  parlia- 
ment produced  few  able  men  before  the  sixteenth  century, 
and  its  acts  were  initiated,  framed,  and  enforced  by  king 
and  council  rather  than  by  "  estates."  Its  value  was  less 
direct  but  not  less  great;  it  fostered  and  formed  a  public 
opinion,  without  which  there  can  be  no  self-government. 
By  its  means  shire  was  linked  with  shire,  borough  with 
borough,  and  class  with  class;  and  the  dissociation  of  the 
feudal  system  was  brought  to  an  end.  In  the  absence  of 
a  vernacular  literature  and  of  all  those  means  by  which 
nations  are  to-day  made  conscious  of  their  identity,  the  only 
means  of  producing  a  common  feeling  was  by  personal 
contact;  and  it  was  the  personal  intercourse  of  their 
representatives  in  parliament  that  made  the  Northumbrian 
and  the  West-Saxon  realize  their  common  bonds  and  common 
aspirations,  and  led  baron,  knight,  and  burgess  to  merge 
their  social  distinctions  in  common  political  action.  Just 
as  common  law  was  hammered  out  in  the  courts  at  West- 
minster and  transmitted  throughout  the  land  by  itinerant 
justices,  so  a  common  pohtical  sense  was  evolved  from  the 
communion  of  class  and  locality  in  parliaments,  and  com- 
municated by  slow  degrees  through  members  to  their 
constituencies.  The  infiltration  was  facilitated  by  the  very 
defects  of  medieval  parliamentary  practice.  For  parlia- 
ments, while  they  sat  for  only  a  fortnight  or  three  weeks, 
were  chosen  afresh  two  or  three  times  a  year,  and  members 
were  rarely  re-elected;  but  only  residents  were  chosen,  and 
it  followed  that  far  more  Englishmen  served  as  members  of 
parliament  then  than  now.  In  a  borough  with  a  small 
constituency,  it  might  easily  happen  that  almost  every 
constituent  had  at  one  time  or  other  been  sent  to  West- 


THE  PLACE   OF  PARLIAMENT  IN  HISTORY         g 

minster.  The  member  would  not  be  an  expert  politician, 
but  the  constituency  would  have  a  high  average  acquaint- 
ance with  Westminster  politics ;  and  in  politics  the  general 
intelligence  of  constituencies  is  as  important  as  the  excep- 
tional capacity  of  representatives.  Probably  in  medieval 
England  it  was  more  essential  that  a  large  number  of  local 
burgesses  should  be  brought  occasionally  into  touch  with 
the  heart  of  national  government,  than  that  a  few  should 
become  expert,  regular,  and  professional  members  of 
parliament. 

Parliament  has  thus  been  the  peculiar  means  through 
which  the  English  people  achieved  their  unity  and  nation- 
ality, and  that  is  perhaps  the  reason  why  the  nation  has 
always  excelled  in  politics.  There  are  various  means  by 
which  unity  has  been  stamped  upon  the  peoples  of  the 
world.  In  primitive  times  and  backward  communities  it 
has  been  simply  a  matter  of  race.  Sometimes  unity  has  been 
achieved  through  religion;  and  Mohammedanism  has  been 
the  most  successful  in  this  respect,  though  for  a  time  it 
seemed  as  though  the  papacy  might  by  means  of  the  catholic 
religion  weld  the  west  of  Europe  into  a  imified  ecclesiastical 
state.  The  Romans  impressed  unity  on  their  empire  by 
force  of  arms  and  the  genius  of  their  law.  Other  peoples 
have  owed  their  impression  of  unity  to  their  literature  or 
their  art.  But  in  none  of  these  ways  did  the  English  people 
find  their  national  salvation,  though  the  Hundred  Years' 
war  and  the  literature  of  the  ages  of  Chaucer  and  Shake- 
speare powerfully  aided  the  growth  of  national  sentiment. 
But  these  stimulants  to  communion  were  preceded  by 
parliaments,  and  it  may  be  doubted  whether,  without  the 
financial  assistance  of  parliaments,  the  Hundred  Years'  war 
could  have  been  fought  at  aU,  and  whether,  without  the 
impetus  of  pariiaments  to  common  thought,  Chaucer  would 
have  found  a  public  for  which  to  write. 

English  nationalism  cannot,  indeed,  be  assumed  before 
the  reign  of  Edward  I.     The  cry  against  aliens  was  loud  m 
the  land  under  Henry  HI,  but  it  was  raised  by  men  wh^  C^. 
were  hardly  more  English  than  the  aliens  they  denounced. 


lo  THE  EVOLUTION  OF  PARLIAMENT 

Englishmen  would  resent  an  influx  of  Russians  or  Germans 
into  the  Indian  civil  service,  but  their  resentment  would 
not  be  due  to  their  Indian  nationality.  Magna  Carta 
is  claimed  as  a  triumph  of  English  nationalism,  and 
men  talk  of  a  national  church  in  the  thirteenth  century. 
But  the  popular  claim  for  Magna  Carta  would  be  more 
convincing,  if  there  could  be  found  a  single  thirteenth-, 
fourteenth-,  or  fifteenth -century  version  of  the  charter  in 
the  English  language ;  and  it  would  be  easier  to  believe  in  a 
national  church  if  its  bishops  and  abbots  and  friars  had 
been  less  foreign  and  if  the  tongue  they  used  had  been  that 
of  the  flocks  they  tended.  But  it  is  not  easy  to  grasp  the 
meaning  of  a  nationalism  attributed  to  a  people  without  a 
native  literature,  a  native  church,  a  native  government,  or 
even  a  native  opposition;  and  English  nationalism  only 
emerged  with  parliaments  under  Edward  I. 

It  is  parliament,  too,  which  transforms  medieval  into 
modern  liberty,  and  the  "  franchise  "  of  the  feudal  baron 
into  universal  suffrage.  The  extent  and  rapidity  of  the 
change  that  is  wrought  by  parliament  in  the  conception  of 
liberty  is  strikingly  shown  by  a  comparison  of  Magna  Carta 
with  a  little-known  petition  sent  up  by  the  commons  in 
1348.  The  liberties  for  which  the  authors  of  Magna  Carta 
clamoured  had  become  anathema  to  the  commons  four 
generations  later :  **  whereas,"  they  complain,  "  liberties 
have  been  so  lavishly  granted  by  our  lord  the  king,  that 
the  whole  of  this  realm  almost  has  been  enfranchised — to 
the  great  oppression  of  the  people  and  hindrance  of  the 
common  law — may  it  please  our  lord  the  king  to  refrain 
from  such  concessions  in  the  future."  ^  One  man's  food 
may  be  another's  poison,  and  the  baron's  liberty  consisted 
in  the  servitude  of  his  villeins;  his  franchise  was  irrespon- 
sible dominion  over  his  tenants,  and  it  involved  a  negation 
of  common  law.  The  more  numerous  and  the  wider  the 
franchises,  the  narrower  the  scope  of  the  common  law  and 
the  greater  the  means  of  private  oppression.  The  chief 
•claim  of  Magna  Carta  is  that  those  who  possess  these  fran- 

1  Rotuli  Parliamentorum,  ii.  166  b. 


THE  PLACE  OF  PARLIAMENT  IN  HISTORY        n 

fhises  shall  be  exempt  from  the  royal  or  national  interference. 
Liberties  were  as  great  an  oppression  in  12 15  as  in  1348,  and 
as  stubborn  an  obstacle  to  the  common  law;  but  in  1215 
there  was  no  parliament  to  voice  the  common  opinion  or  to 
interpret  the  real  meaning  of  Magna  Carta.  There  were 
more  "  liberties  "  in  the  sense  of  Magna  Carta  before  par- 
liaments existed  than  there  have  been  since  or  are  hkely  to 
be  again ;  for  one  of  the  greatest  historical  services  rendered 
by  parhaments  has  been  to  abolish  the  liberties  of  the  Great 
Charter,  and  transform  "  liberty  "  from  the  privilege  of 
the  baron  into  the  common  inheritance  of  the  English 
people. 

The  conversion  was  not,  of  course,  accomplished  by 
Edward  I  nor  even  by  the  comnions  under  Edward  III. 
But  Edward  I  did  something  by  his  quo  warranto  inquiries 
into  the  titles,  by  which  the  barons  claimed  to  exercise  the 
despotic  authority  called  their  liberty;  and  he  did  more 
when  he  brought  his  "  commons  "  into  the  high  court  of 
parhament,  and  provided  therein  a  hearing  for  suitors  who 
had  their  constituents'  purses  to  back  their  petitions. 
Again,  it  was  their  collective  action  that  gave  strength  to 
their  demands  for  redress.  The  timorous  individual  gained 
courage  in  the  crowd;  and  the  personal  supplication  swelled 
to  higher  note  in  the  common  petitions  of  parliaments.  But 
political  education  comes  slowly  to  a  people,  and  it  was 
long  before  the  locally-minded  burgesses  learnt  that  popular 
power  depends  upon  a  capacity  to  sacrifice  local  aspirations 
and  particular  interests  in  the  pursuit  of  common  ends. 
The  will  to  achieve  a  common  liberty  was  weaker  than  the 
will  to  grasp  a  local  advantage ;  and  boroughs  were  only  too 
willing  to  abandon  their  part  in  national  politics,  if  they 
might  thereby  escape  the  expense  which  representation 
involved.  Parliament  might  complain  of  the  lavish  dis- 
tribution of  liberties,  but  it  lacked  the  force  of  public  opinion 
to  ensure  the  observance  of  its  petitions;  and  to  the  end 
of  the  middle  ages,  the  liberties  of  the  lords  remained  the 
curse  of  the  body  politic.  It  was  not  till  Henry  VIII,  by 
means  of  acts  of  parliament,  began  to  take  such  "  liberties 


12  THE  EVOLUTION  OF  PARLIAMENT 

into  the  hands  of  a  national  sovereign,  that  national  liberty 
at  last  got  under  weigh. 

It  had  still  a  stormy  voyage  before  it.  The  absorption 
of  feudal  liberties  by  the  crown  gave  rise  to  a  monstrous 
growth  in  the  liberties  of  kings,  and  the  Stuarts  went  down 
in  defence  of  free  and  independent  monarchy.  Freedom 
and  independence  became  a  common  cry  without  becoming 
a  common  cause.  King,  lords,  commons,  and  law-courts 
all  demanded  liberty;  but  it  was  their  own,  and  not  other 
people's  liberties,  of  which  they  were  enamoured,  and  when 
the  crown  was  smothered  by  the  Whigs,  the  two  houses  of 
parliament  each  claimed  an  irresponsibility  as  complete 
but  not  as  divine  as  that  asserted  by  Charles  I.  To  report 
their  speeches  or  to  publish  their  votes  was  an  infringement 
of  their  rights,  and  parliamentary  privilege  was  the  latest 
growth  of  the  medieval  notion  of  liberty.  But  unlike  the 
crown  and  the  barons,  parliament  was  the  means  of  reform- 
ing itself ;  it  abandoned  its  irresponsibility,  and  transformed 
its  exclusive  liberty  into  its  duty  to  its  constituents.  If  its 
function  has  not  been  to  make  all  things  common,  it  has  at 
least  created  a  common  liberty. 

Political  communism  is,  indeed,  the  keynote  of  parliamen- 
tary history,  and  the  house  of  commons  has  been  the  essential 
factor  in  the  growth  of  parliament.  "  Commons  "  is  a  form 
of  "  communes  "  or  communities ;  and  as  early  as  the  four- 
teenth century,  the  official  handbook  to  parliaments  lays  it 
down  that  the  king  can  hold  a  parliament  with  the  "  com- 
munity "  of  his  realm  although  no  bishop,  earl,  or  baron 
attends,  but  that  without  the  "  community  "  no  parhament 
can  be  held,  though  bishops,  earls,  and  barons,  and  all  their 
peers  are  present  with  the  king.^  To  express  the  common 
sense  of  the  community  has  always  been  the  function  of 
EngHsh  parliaments,  and  the  predominance  of  the  layman 
has  ever  appealed  to  the  English  mind.  The  expert  has 
seldom  been  at  home  in  the  atmosphere  of  parliament, 
and  from  first  to  last  its  communal  organization  has  for- 

1  Modus  Tenendi  Parlidmentum  in  Stubbs,  Charters,  ed.  1900,  p.  512. 
See  below,  p.  80. 


THE  PLACE  OF  PARLIAMENT  IN  HISTORY        13 

bidden  its  separation  into  "  estates."  Its  description  as 
"  three  estates  "  arose  in  the  fifteenth  century  out  of  a 
mistaken  French  analogy,  and  the  phrase  was  never  a  true 
definition  of  an  EngHsh  parliament.  The  whole  concep- 
tion of  caste  implied  in  the  word  was  alien  to  English  law 
and  English  politics ;  and  every  man's  place  in  parliament 
was  determined  by  tenure  and  not  by  status,  by  writs  o|| 
summons  and  not  by  class  distinctions.  The  **  grades  "J 
or  *'  estates,"  of  which  we  read  in  the  fourteenth-century 
parliaments,  were  many  and  not  merely  three  in  number, 
and  they  were  not  matters  of  birth.  The  judges  are  called 
an  estate,  and  so  are  the  clerical  proctors ;  yet  the  one  was 
composed  of  royal  nominees,  and  the  other  of  representatives 
whose  birth  might  be  noble,  gentle,  simple,  or  base.  There 
was  no  distinction  of  caste  between  the  baron  who  had  a 
special  writ  and  the  baron  who  sat  for  a  shire ;  both  might 
be  barons  and  both  might  be  knights,  and  every  priest  was 
at  least  a  "  lord."  ^  So  far  from  the  EngHsh  parhament  being 
a  system  of  three  estates,  it  was  the  difference  between 
such  systems  and  the  English  parliament  that  enabled 
parliament  to  survive  and  grow  while  every  system  of 
estates  dwindled  away  and  died.  Their  division  into  estates 
was  fatal  to  their  permanence  and  power;  parliament  was 
saved  by  the  community  of  thought  and  action  which 
averted  social  schism  and  made  our  English  state. 
f  The  communion  of  parliaments  led  to  the  estrangement 
of  the  church  in  the  fourteenth  century  and  to  the  vic- 
tory of  parliament  over  it  in  the  sixteenth.  Convocation 
was  not  merely  composed  of  clerics;  it  was  also  elected 
by  them,  and  it  represented  nobody  else.  The  commons 
represented  the  nation,  except  for  its  clergy.  No  organized 
class  is  long  successful  in  English  politics;  whenever  a  class 
acts  as  a  class  in  politics,  whether  clergy  or  doctors  or  manual 
workers,  it  betrays  a  lack  of  political  wisdom;  and  the 
most  prudent  as  well  as  the  most  ambitious  claim  of  the 
labour  party  is  to  represent  all  those  who  work  tor  their 

1  "  Domine  "  might  be  used  as  an  address  almost  as  widely  as  "  Sir  " 
is  to-day. 


14  THE  EVOLUTION  OF  PARLIAMENT 

living  and  not  merely  those  who  toil  with  their  hands. 
For  the  English  people,  assisted  by  parliaments,  have  laid 
hold  of  the  Aristotelian  maxim  that  the  best  judge  of  a 
dinner  is  not  the  cook  but  the  diner,  and  the  best  judge  of 
a  performance  in  music  or  the  drama  is  not  the  performer 
but  the  public.  The  issue  between  church  and  state  was 
one  between  expert  and  layman,  and  the  claim  of  the  poli- 
ticians who  effected  the  Anglican  reformation  was  that 
religion  should  be  the  affair  of  the  people  and  not  the 
domain  of  the  priests.  Doctrine,  they  held,  could  be 
defined  by  national  authority,  prayers  should  be  "  common," 
and  the  vehicle  of  religion  should  be  the  vernacular  tongue ; 
and  these  things  could  only  be  done  by  acts  of  parliament. 
In  Scotland  the  case  was  different :  no  Henry  II  had  there 
created  a  common  law,  and  no  Edward  I  a  house  of 
commons.  The  Scottish  estates  were  more  like  the  French 
estates  than  the  English  parliament,  and  the  Roman 
citadel  fell  before  blasts  from  the  trumpets  of  Knox  and 
his  fellow-churchmen.  The  kirk  they  established  was 
based  on  lay  as  well  as  ecclesiastical  representation,  and  its 
general  synod  was  a  better  exponent  of  public  opinion 
than  the  secular  Scottish  parliament.  The  union  of  the 
English  and  Scottish  parliaments  was  facilitated  by  the 
fact  that  Scottish  national  sentiment  was  reflected  in  the 
kirk  which  retained  its  autonomy;  and  Scotland  took  little 
stock  in  parliaments  until  in  the  nineteenth  century  the 
kirk  had  suffered  disruption  and  ceased  to  embody  Scots 
public  opinion. 

It  has  been  said  that  the  supreme  achievement  of  the 
Reformation  is  the  modern  state, ^  and  it  is  true  that  the 
destruction  of  the  medieval  liberties  of  the  church  paved 
the  way  for  the  *'  omnicompetence  "  of  parliament.  The 
doctrine  of  parliamentary  infallibility,  which  emerges 
under  Henry  VIII,  was  seriously  adopted  even  by  royalist 
judges  under  Charles  I.^    Modern  catholics  like  Lord  Acton 

^  Figgis  in  Cambridge  Modern  History,  iii.  736. 

2  Letters  and  Papers  of  Henry  VIII,  XX.  ii.  p.  345 ;  Gardiner's  Docu- 
ments, ed.  1889,  p.  54. 


THE  PLACE  OF  PARLIAMENT  IN  HISTORY        15 

have  regretted  the  fall  of  the  church  on  the  ground  that  it 
is  the  natural  guardian  of  liberty  against  the  encroachments 
of  the  modem  state;  but  where  the  church  retained  its 
liberties,  as  in  France,  Spain,  Austria,  and  Italy,  the  gain  to 
popular  freedom  was  not  apparent,  and  the  reason  was  that 
the  clergy  stood,  as  a  rule,  for  their  own  and  not  for  other 
people's  liberties.  It  was  jurisdiction,  irresponsibility,  and 
power  for  which  they  contended  against  the  state ;  and  their 
failure  in  England  was  not  fatal  to  popular  liberty  because 
the  victorious  parliament  stood  for  representation  and  public 
opinion.  The  forces  it  represented  against  the  church 
enabled  it  later  on  to  repress  its  monarchical  allies;  and, 
while  monarchy  was  severely  checked  in  1688,  sovereignty 
was  strengthened  and  developed.  The  state  has  gone  on 
from  strength  to  strength  because  its  parliamentary 
organization  provided  for  an  ever-widening  national  repre- 
sentation, and  government  became  increasingly  the  affair 
of  the  JEnglish  people. 

The  fear,  which  haunted  de  Tocqueville  in  the  earUer 
half  of  the  nineteenth  century,  that  democracy  involved 
weak  government,  has  since  given  way  to  alarm  at  the 
despotism  of  the  state;  and  it  is  clear  that  the  power 
wielded  by  modern  governments  is  out  of  all  proportion 
greater  than  that  of  medieval  or  even  Tudor  monarchs. 
Their  puny  budgets  and  casual  armies  rendered  their  rule 
little  more  than  a  struggle  for  existence.  They  could 
hardly  keep  peace  at  home  or  maintain  war  abroad  because 
both  peace  and  war  were  regarded  as  their  affairs  and  not 
the  affairs  of  their  people,  and  parliament  did  not  consider 
itself  responsible.  It  was  always  the  opposition  and 
never  the  government ;  and  even  to-day  a  prolong"ed  sojourn 
on  benches  to  the  left  of  the  Speaker's  chair  impairs  a  party's 
sense  of  responsibihty.  Parties  are  only  restrained  from 
faction  by  the  prospect  of  having  themselves  to  manage 
afairs;  and  that  prospect  was  never  before  the  eyes  of  a 
medieval  parliament.  Supplies  had  to  be  wrung  from  the 
commons  by  all  sorts  of  impossible  promises,  because 
supplies  were  regarded  as  personal  gifts  to  a  kmg  and  not 


16  THE  EVOLUTION   OF  PARLIAMENT 

as  the  means  of  achieving  a  common  purpose.  It  was  only 
a  pariiamentary  government,  responsible  to  an  electorate, 
that  could  raise  the  funds  required  to  foil  a  Louis  XIV  or  a 
Napoleon  and  to  create  a  British  empire.  Its  one  great 
disruption  was  due  to  neglect  of  the  truth  that  the  strength 
of  a  government  depends  upon  its  sense  of  responsibility 
to  those  whom  it  governs;  and  the  North  American  colonies 
were  lost  by  George  III  because  he  believed  he  could  tax 
them  against  their  will.  The  omnicompetence  of  the 
modern  state  has  grown  out  of  the  comprehensiveness  of 
its  representative  parliament,  and  every  self-conscious 
political  element  excluded  from  the  franchise  is  a  source  of 
weakness  to  the  government. 

Parliament,  however,  could  not  comprehend  all  the  self- 
conscious  communities  within  the  British  empire,  and  the 
responsibility  of  governing  the  overseas  dominions  of  the 
crown  had  to  be  delegated  to  other  parliaments  which  could 
react  more  easily  and  quickly  to  their  varying  demands. 
But  the  habit  of  self-government  made  England  readier  to 
admit  the  claims  of  other  peoples.  Imperial  Rome  sacrificed 
her  provinces  rather  than  nurse  them  into  daughter-states; 
the  British  empire  has  saved  its  unity  by  multiplying  its 
representative  systems,  and  the  mother  of  parliaments  not 
only  made  the  English  state,  but  reproduced  it  in  every 
quarter  of  the  globe.  On  the  lines  laid  down  in  medieval 
English  parliaments  scores  of  legislatures  are  working  in  the 
world  to-day,  solving  similar  problems  of  localism,  racialism, 
and  class  prejudice.  Parliamentary  institutions  have  soft- 
ened the  animosities  of  French  and  British  in  North  America, 
and  of  British  and  Dutch  in  South  Africa,  and  brought 
inveterate  enemies  on  the  field  of  battle  into  common  action 
in  the  cabinet.  The  force  of  argument  has  supplanted  the 
argument  of  force,  and  in  discussion  and  debate  a  common 
sense  and  a  public  opinion  have  hammered  out  a  basis  of 
unity  and  supplied  the  foundations  of  national  growth. 
Each  dominion  has  repeated  the  experience  of  the  mother 
country,  and  passed  through  the  various  phases  of 
constitutional    evolution,    from    crown    administration   to 


THE  PLACE  OF  PARLIAMENT  IN  HISTORY        17 

representative  institutions,  and  from  representative  to 
responsible  government.  But  the  lessons  of  history  were 
not  forgotten ;  and  results  which  took  the  mother  country 
centuries  of  painful  labour  to  achieve,  were  secured  by  the 
colonies  within  a  generation  and  sometimes  within  a 
decade. 

The  very  completeness  of  its  success  has  suggested  the 
thought  that  the  work  of  parliament  has  been  done.  It 
has  created  the  nation  and  educated  it  in  self-government; 
democracy,  we  are  told,  can  now  legislate  for  itself,  and  the 
middlemen  of  parliament  are  superfluous.  Having  sub- 
jected the  expert  to  common  sense,  it  should  itself  submit 
to  the  referendum,  and  abandon  its  sovereign  rights  to  the 
man  in  the  street.  If  lay  judgement  is  valid,  why  defer  to 
professional  politicians  ?  The  question  raises  a  critical  issue 
for  parliament,  whose  future  depends  on  the  answer.  In 
truth  there  never  was  greater  need  for  political  experts,  and 
democracy  has  just  as  much  use  for  the  specialist  as  any 
other  political  system.  He  is  not  the  final  arbiter,  but  his 
advice  is  needed  none  the  less.  The  member  of  parliament 
is  like  the  doctor  of  physic ;  the  patient  is  foolish  who  tries 
to  dispense  his  own  prescriptions,  but  he  can  choose  his 
medical  man  and  even  reject  his  advice,  occasionally  with 
impunity.  The  responsibility  for  the  adoption  or  refusal  of 
expert  advice  rests  with  the  patient  because  it  is  he  who 
suffers.  It  is  the  same  in  political  matters ;  the  community 
suffers  from  foolish  advice  and  benefits  from  wise  counsel- 
it  should  therefore  choose  its  advisers,  and  judge  them  by 
their  works.  If  they  are  good,  confidence  will  continue  ; 
if  they  are  bad,  a  change  of  advice  will  be  sought.  But  the 
electors  can  no  more  do  the  work  of  parliament  than  the 
patient  can  do  his  doctor's.  The  people  are  fairly  good 
judges  of  legislation  after  experience  of  its  effects;  but  they 
are^very  bad  judges  of  programmes..  For  to  forecast  the 
effect  of  legislation  requires  the  deepest  political  insight, 
and  is  the  rarest  of  gifts.  It  may  be  argued  that  the  people 
would  learn  to  legislate  wisely  from  the  effects  of  their  own 
legislation  :  they  might   also  learn  the  properties  of  the 


i8  THE  EVOLUTION   OF  PARLIAMENT 

whole  materia  medica  from  the  effects  of  their  own  prescrip- 
tions, but  the  casualties  in  the  process  of  enlightenment 
might  be  fatal  to  the  community.  It  is  more  prudent  to 
employ  the  expert  and  hold  him  responsible  for  his 
advice. 

We  talk,  indeed,  of  democracy,  but  seldom  pause  to 
define  it,  except  in  magnificent  phrases.  Abraham  Lincoln 
spoke  of  **  government  of  the  people  for  the  people  by 
the  people";  but  the  people  have  never  been  able  to 
govern  themselves  except  in  the  sense  of  choosing  between 
two  or  more  sets  of  governors  and  two  or  more  party- 
programmes.  When  it  comes  to  matters  of  practice, 
the  nearer  we  get  to  direct  popular  rule,  the  slighter  the 
power  we  leave  to  the  people.  A  parish  council  is  allowed 
to  do  little  because  it  is  a  real  parochial  democracy;  a 
county  council  can  do  more  because  it  is  further  removed 
from  the  man  in  the  street ;  but  even  it  is  subject  to  control 
from  a  bureaucracy  at  Whitehall.  No  one  would  dream  of 
entrusting  the  determination  of  foreign  policy,  of  educational 
problems,  or  questions  of  public  health  or  finance  to  a 
referendum,  because  not  one  in  a  hundred  of  those  who 
would  vote  could  understand  the  issues  at  stake.  The 
democracy  that  is  practised,  as  distinct  from  the  democracy 
that  is  preached,  in  England  is  a  matter  of  complex  and 
careful  gradation  embodying  other  than  democratic  prin- 
ciples. The  prime  minister  is  more  of  a  monarch  than 
many  kings,  and  the  cabinet  has  features  of  more  than 
Venetian  oligarchy.  It  is  only  by  means  of  parliament  that 
these  undemocratic  factors  are  fused  in  a  popular  govern- 
ment, and  the  secrecy,  despatch,  and  efficiency  essential  to 
the  administration  of  an  empire  are  combined  with  the  rule 
of  public  opinion.  At  present  parliament  holds  the  political 
field.  It  is  liable,  as  it  has  ever  been,  to  legitimate  criticism, 
and  it  needs  reform ;  but  no  proposal  for  its  abolition  proceeds 
from  any  sounder  premiss  than  unphilosophic  impatience 
with  the  imperfections  of  human  institutions,  or  than 
thoughtless  faith  in  the  wisdom  of  the  mob.  By  means  of 
parliamentary  government,  adapting  itself  in  time  to  chang- 


THE  PLACE   OF  PARLIAMENT  IN  HISTORY        19 

ing  conditions,  the  modern  state  will  have  to  solve  its 
problems  for  ages  yet  to  come ;  and  there  is  a  practical  as 
well  as  an  academic  purpose  to  be  served  by  an  inquiry 
into  the  origin,  functions,  and  evolution  of  the  organ  of 
the  English  people. 


^    * 


CHAPTER  II 

THE   HIGH  COURT  OF  PARLIAMENT 

Four  ideas,  at  least,  with  respect  to  the  foundations  and 
functions  of  English  parhaments  have  become  firmly  rooted 
in  the  popular  mindtJ  One  is  that  their  principal  object  has^ 
ever  been  the  making  of  laws  * '  another  is  that  hereditary ' 
peerage  and  popular  representation  were  indispensable 
elements  in  their  original  constitution;  a"^third  that  they 
have  always  consisted  of  two  houses  j  land  a  fourth  that  they 
were  based  on  three  estates.  Like  all  conceptions  that  have 
been  firmly  grasped  by  the  multitude,  these  impressions 
about  the  history  of  parliament  are  hardly  less  false  than  true : 
and  it  is  the  purport  of  these  pages  to  show  cause  for  thinking 
th^.t  parliaments  in  their  infancy,  were  much  that  parliament 
to-day  is  not,  and  little  that  it  is ;  that  legislation  v/as  not 
the  original  purpose  of  their  being ;  that  they  existed  before 
they  contained  any  representative  elements ;  that  there  v/as 
a  time  When,  if  parliaments  comprehended  a  peerage  at  ail, 
that  peerage  was  not  in  parliament  by  hereditaiy  or  ony 
other  right  than  royal  grace;  that  parliament  was  at  firsl 
a  single  chamber;  that  there  was  no  "house"  cf  lords 
until  after  the  close  of  the  middle  ages ;  that  the  **  house  " 
of  commons  was  not  an  original  part  of  parliament,.,  l>ut  yet 
is  older  than  the  "house"  of  lords;  and  that  the  notion 
of  three  estates  —  so  far  from  being  the  fundamental 
principle  upon  which  parliaments  were  built — ^was  borrow^^d 
from  abroad  and  hesitatingly  applied  in  the  third  c-ntury 
of  English  parliamentary  history  to  an  institution  to  which 
it  was  foreign  in  spirit  and  in  practice. 

Most    of   the    common   impressions   of    pariiamint    are, 
indeed,  irreconcileable  with  the  correct  designation  of  it 

20 


THE  HIGH   COURT  OF  PARLIAMENT 


21 


placed  at  the  head  of  this  chapter.  The  words  are  familiar 
enough  to  those  who  know  their  book  of  common  prayer; 
but  words  have  become  so  cheap  that  five  are  often  wasted 
where  one  would  suffice,  and  four  out  of  these  five  words 
are  regarded  as  merely  ornamental  detail  added  to  "  parlia- 
ment "  for  the  sake  of  magniloquence  or  to  improve  the 
rhythm  of  the  petitions  in  which  they  occur.  Why  the 
legislature  should  be  called  a  high  court  is  a  question 
which  few  of  those,  who  invoke  divine  direction  for  its  con- 
sultations, pause  to  ask  or  seek  to  answer.  The  most 
picturesque  method  of  attempting  to  solve  the  riddle  would 
be  to  visit  that  gilded  ruin  of  the  great  council  chamber 
of  parliament  ^  which  we  call  the  house  of  lords,  and  to 
trace  the  processes  by  which  the  various  objects  meeting 
our  eye  have  come  to  be  where  and  what  they  are  or  pretend 
to  be.  The  house  of  lords  is,  however,  still  restricted  to 
purposes  ether,  though  not  necessarily  more  useful,  than 
historical  exposition;  and,  relying  upon  those  powers  of 
visualization  which  every  reader  is  bound  to  cultivate, 
we  must  undertake  in  imagination  a  sort  of  geological  and 
archaeological  survey  of  that  chamber,  with  the  hope  that 
in  our  excavations  we  may  light  upon  a  fossil  here  and  there 
which  may  enable  us  to  reconstruct  an  eariier,  and  in  this 
c^se  less  glacial,  period  of  its  history. 
J  The  firht  object  to  arrest  our  attention  will  be  the  throne^ 
a'symbolic  and  material  reminder  of  the  facts  that  the  Vm^ 
is  legally  present  in  every  court  throughout  the  British 
empire,  and  that  every  act  of  parliament  is  technically  an 
act  of  the  king  in  pariiament,  just  as  every  order  in  council 
is  an  order  of  the  king  in  council.)  The  physical  appearances 
of  the  king  in  parliament  have,  it  is  true,  grown  so  rare  ana 
become  so  purely  ceremonial  that  we  may  pardon  our  own 
forgetfulness  of  the  incongruity  between  our  theory  of  the 
house  of  lords  as  a  chamber  consisting  of  peers  on  the 
one  hand,  and  on  the  other  the  actual  presence  of  the 
king,  who  has  no  peer  in  his  own  dominions  and  yet  is  the 
only  pir.^n— except  the  lord  chancellor -- entitled  to  sit 
1  See  below,  pp.  72-3.  98,  291,  zoo. 


22  THE  EVOLUTION   OF  PARLIAMENT 

in  the  house  of  lords  without  a  summons.  Nevertheless, 
it  is  not  long  since  the  sovereign  was  personally  considered 
so  essential  to  parliament  that  a  demise  of  the  crown 
instantaneously  put  an  end  to  a  parliament  and  rendered 
its  further  proceedings  an  empty  form.  Earlier  still,  in  the 
reign  of  Edward  III,  and  again  in  that  of  Henry  VI,  it  was 
a  matter  of  anxious  debate  in  parliament  and  in  council 
whether  parliament  could  transact  any  business  whatsoever 
without  the  corporal  presence  of  the  king.  Clearly  it 
required  more  than  peers  to  make  a  house  of  lords. 

Not  less  interesting,  from  our  present  point  of  view,  than 
the  presence  of  the  king  upon  his  throne,  is  the  more  frequent 
presence  of  members  of  the  house  of  commons  who  are  privy_ 
councillors  upon  its  steps.  But  their  mere  presence  in  the 
house  of  lords,  at  the  opening  of  parliament  or  during  the 
progress  of  an  important  debate  among  the  peers,  is  not  so 
significant  as  the  fact  that  they  cannot  be  excluded.  When 
a  peer  listens  from  the  peers'  gallery  to  a  debate  in  the 
house  of  commons,  he  is  there  on  sufferance;  and  any 
member  can,  by  "  spying  strangers,"  have  the  peers  excluded. 
That,  we  shall  find,  is  a  relic  of  the  time  when  the  house  of 
commons  was  no  part  of  parliament,  but  a  more  or  less/ 
secret  debating  assembly,  of  the  proceedings  of  which 
parliament  had  no  cognizance  until  they  were  reported 
to  it  by  the  Speaker.  The  right  of  privy  councillors  to  be< 
present  at  the  lords'  debates  illustrates  the  fact  that  the 
house  of  lords  is  the  ancient  parliament  chamber  of  a  great 
council  which  comprised  other  elements  than  peers.  We 
are  tpld,  it  is  true,,that  the  throne  is  not  technically  in  the 
house  of  lords;  but  assuredly  it  is  in  parliament,  and  we 
are  deceiving  ourselves  by  this  explanation  unless  we  realize 
that  within  the  parliament  chamber  there  has  been  drawn, 
first  an  invisible  Hne,  and  then  a  visible  rail  to  give 
substance  to  the  theory,  separating  the  peers  from  some 
newer,  but  also  from  some  older  and  more  essential, 
elements  of  parliament. 

Another  object  which  we  are  told  is  not  technically  in 
t1w>  house  of  lords  is  the  wnnknrT:  although  an  act  of  1539 


THE  HIGH   COURT  OF  PARLIAMENT  23 

declares  specifically  that  it  is  "  in  the  midst  of  the  parliament 
chamber."  1  On  it  sits  the  lord  chancellor  whose  presence 
and  whose  functions  are  as  incongruous  as  the  king's  with 
our  current  notions  about  the  house  of  lords.  It  is  true 
that  since  the  reign  of  Queen  Anne  the  lord  chancellor  has 
always  been  made  a  peer  if  not  already  one  before  his 
appointment.  But  this  practice  has  been  simply  one  of 
giving  him  a  coat  of  hereditary  paint  to  make  him  look  hke* 
his  surroundings.  Historically,  there  was  no  reason  why\ 
the  lord  chancellor  should  be  a  peer;  he  requires  no  writ 
of  summons,  and,  in  fact,  as  lord  chancellor,  he  receives 
no  summons.  It  was  he  who  summoned  every  one  elseN 
either  by  special  or  by  general  writs  issued  out  of  chancery ; 
he  had  no  need  to  summon  himself ;  he  was  there  ex  officio. 
Every  schoolboy  knows  that  Sir  Thomas  More  was  chancellor 
and  that  he  never  was  a  peer,  although  as  chancellor  he 
presided  over  the  house  of  lords,  and  took  the  leading  part 
in  its  proceedings.  The  same  functions  were  performed 
throughout  Elizabeth's  reign  by  Sir  Nicholas  Bacon,  Sir 
Thomas  Bromley,  Sir  Christopher  Hatton,  Sir  John  Pucker- 
ing and  Sir  Thomas  Egerton,  who  were  no  more  peers  than 
Sir  Thomas  More ;  and  down  to  1705  the  lord  chancellor  or 
lord  keeper,  whose  power  had  been  declared  equivalent  to 
the  lord  chancellor's  by  an  act  of  1559,  was  as  often  as  not 
a  commoner.  In  the  earliest  periods  of  parliamentary  history 
the  lord  chancellor  had  usually  been  a  bishop ;  but  in  1340 
Sir  Robert  Bourchier  was  appointed,  who  was  neither  a 
bishop  nor  a  baron,^  and  he  had  successors  in  Sir  Robert 
Parning,  Robert  de  Sadington,  John  de  Ufford,  Sir  Robert 
Thorpe,  Sir  John  Knyvett  and  others,  who  performed  the 
chancellor's  functions  without  being  summoned,  as  peer§ 
or  in  any  other  capacity,  to  parhament.  Down  to  the 
present  day  a  new  lord  chancellor  takes  his  seat  on  the^/ 
woolsack  before  he  becomes  a  peer. 

These   chancellors  sat  in  the  high  court  of  parliament 

2  ¥i\ie^ Constitutional  History  of  the  House  of  Lords,  p.  353  '»  cf-  Elsynge, 
Modus,  pp.  138-9,  152-3. 


24  THE  EVOLUTION  OF  PARLIAMENT 

■  4 

/I  because  they  were  judges  or  councillors ;  and  other  judges 
had  their  places  beside  them.  A  judge  is  still  addressed  as 
**  my  lord  "  because  the  high  court  of  justice  in  which  he 
sits  is,  in  spite  of  its  removal  from  Westminster  Palace  to 
the  Strand,  an  historical  part  of  the  high  court  of  parlia- 
ment, of  which  the  judges  were  lords.  They  still  are 
summoned  by  special  writ  to  the  house  of  lords,  as  are 
the  law  officers  of  the  crown  and  masters  in  chancery,  and 
as  were  the  serjeants-at-law  until  the  abolition  of  that  order 
of  the  coif.  It  is  true  that  for  many  years  these  writs  of 
summons  to  king's  councillors  learned  in  the  law  have  not 
been  obeyed,  but  their  issue  to  all  the  legal  luminaries  of 
the  country  proves  that  the  constitutional  theory  of  the 
second  chamber  is  different  from  the  modern  practice  and 
conceptions  of  the  house  of  lords.  Finally,  a  small  detail 
of  parliamentary  usage  will  serve  to  emphasize  the  point : 
in  both  houses  of  parliament,  an  examination  of  the  Journals 
in  the  sixteenth  century  will  show  that  the  word  used  to 
indicate  the  passing  of  a  bill  is  judicium  ;  every  act  of  either 
house,  public  or  private,  was  in  fact  a  judgement,  because  a 
parliament  was  a  court.  Indeed,  had  it  not  been  a  court, 
it  might  never  have  become  a  legislature ;  for,  as  we  shall 
see,  legislation  is  not  a  natural  product  of  juvenile  states, 
and  it  only  develops  slowly  out  of  judicial  functions. 

We  can  now  approach,  with  some  hope  of  understanding 
its  purport,  the  earliest  definition  of  an  English  parliament. 
It  occurs  in  the  work  of  Fleta,  a  pseudonymous  author  who 
wrote  in  the  time  of  Edward  I  or  Edward  II ;  and  it  runs  as 
follows  :  hahet  enim  rex  curiam  suam  in  consilio  suo  in  parlia- 
mentis  suis}-  To  the  modern  eye  with  its  prejudice  in  favour 
of  the  constitutional  separation  of  powers,  this  description 
appears  to  involve  a  strange  confusion  of  functions.  In 
"  curia "  we  have  the  judicature,  in  *'  consilium  "  the 
executive,  and  in  "  parliamenta  "  the  legislature;  and  they* 
are  all  here  rolled  into  one.     In  substance  this  is  true, 

^  Fleta,\ih.n.  c.  i;  Maitland,  Memoranda  de  Parliamento  (Rolls  Ser.), 
p.  Ixxxi;  Pollock  and  Maitlandi  i.  179  «*^.'  Baldwin,  King\^  Council, 
p.   308. 


THE   HIGH   COURT  OF  PARLIAMENT  25 

though  the  point  of  view  is  misleading.  It  is  not  that  three 
constitutional  functions  have  been  merged  in  one;  it  is^ 
that  the  comprehensive  functions  of  a  medieval  parliament'^ 
have  not  yet  been  specialized  and  differentiated;  and  we 
are  dealing  with  a  sort  of  constitutional  protoplasm  out 
of  which  will  in  time  be  evolved  the  various  councils  of  the 
crown,  the  houses  of  parHament,  and  the  courts  of  law. - 
There  are  dangers  enough  in  applying  the  analogies  of  ' 
physical  science  to  the  development  of  political  institutions. 
Nevertheless  historical  study  has  to  accomplish  an  in- 
tellectual revolution  comparable  to  that  achieved  by 
biologists  when  they  broke  down  the  idea  of  the  fixity  of 
species  and  substituted  that  of  evolution.  The  separation 
of  powers,  upon  which  many  modem  constitutions  have 
been  established  as  though  it  was  an  immutable  principle 
of  politics,  only  represents  a  stage  in  constitutional  growth ; 
and  we  cannot  understand  English  constitutional  history, 
with  its  struggles  between  crown,  parhament,  and  courts 
of  law,  unless  we  realize  that  all  are  descended  from  a  single 
ancestor  and  are  disputing  over  their  respective  shares  in 
an  inheritance  which  all  had  once  enjoyed  in  common. 

Further  instruction  can  be  derived  from  Fleta's  statement 
by  a  closer  examination  of  its  terms.  What  does  he  mean  by 
curia?  what  was  the  curia  regis  of  the  twelfth  and  thirteenth 
centuries?  Perhaps  we  may  understand  these  questions 
better  by  asking  a  third,  what  is  the  court  to-day  ?  Of  course 
there  are  courts  of  many  kinds ;  but  the  court  par  excellence, 
the  court  which  requires  no  adjective,  is  the  court  which 
has  its  activity  recorded  under  that  simple  heading  in  the  \ 
court  circular.  It  has  no  fixed  habitation,  no  definite 
functions,  no  elaborate  organization,  no  indispensable  mem- 
ber except  the  king.  It  is  not  a  building,  it  is  not  even 
a  place;  it  exists  wherever  the  king  officially  is  or  is  deemed! 
to  be;  it  is  the  royal  presence,  actual  or  imphed.  The 
view  is  at  least  tenable  that  the  curia  regis  meant  nothmg* 
more;  and  one  might  guess  that  a  medieval  clerk  would 
translate  our  phrases  "  the  crown  in  council "  and  the 
crown  in  parhament,"  not  by  rex  in  conciho  and  rex  m 


26  THE  EVOLUTION  OF  PARLIAMENT 

parliamento,  but  by  curia  regis  in  concilio  and  curia  regis  in 
parliamenio.  We  actually  have  the  phrases  curia  regis  ad 
scaccarium,  curia  regis  in  cancellaria,  and  curia  regis  de 
banco ;  and  none  of  them  can  imply  much  more  than  the 
theoretical  presence  of  the  king  in  these  courts  by  means 
of  specialized  representatives.  Curia  regis  is  the  medieval 
latin  for  what  we  call  the  Crown. 
/  This  theoretical  presence  pervades  every  court  throughout 
f.  the  British  empire  at  the  present  time,  and  it  is  an  attribute 
of  the  modern  sovereignty  of  the  crown  that  no  one  can 
hold  a  court  except  its  representatives  and  delegates.  Feudal 
theory  and  practice,  however,  permitted  franchises  which 
enabled  many  a  baron  to  hold  courts  of  his  own.  But  the 
4  same  vagueness  attached  to  the  meaning  of  curia,  whether 
^  it  was  a  baron's  or  a  king's.  It  simply  implied  a  presence 
and  commonly  it  was  the  vicarious  presence  of  a  steward. 
We  look  in  vain  for  any  definite  organization  of  the  original 
curia  regis  ;  it  kept  no  rolls  until  Henry  II  had  made  it  a 
court  of  law,-*^  and  no  list  of  members  or  record  of  proceedings 
has  been  discovered.  We  have  to  fall  back  upon  a  nebular 
h^^pothesis,  but  in  time  this  subtile  presence  will  take  a  definite 
form,  or  rather  many  definite  forms,  and  our  constitutional 
system  will,  by  a  process  of  differentiation  and  consolidation, 
come  to  resemble  our  solar  system  and  comprise  a  number 
of  planets,  deriving  their  vital  energy  from  le  roi  soleil, 
with  orbits  and  circuits  of  their  own,  sustained  by  the"  central 
power  of  sovereignty.  Nothing,  indeed,  seems  to  be  a 
curia,  unless  this  individual  presence  is  implicit;  and  if 
the  term  was  applied  to  the  courts  of  the  franchises  and 
of  the  shires,  it  was  because  the  franchise  came  from  the 
crown,  and  the  king  was  as  much  present  in  the  persons  of 
his  sheriffs  in  the  shire  courts  as  he  is  in  all  our  courts  to-day. 
The  courts  christian  implied  a  jurisdiction,  which  came  also 
from  above ;   and  a  court  is  not  a  popular  institution. ^ 

1  The  Yotuli  curiae  regis,  which  exist  from  5  Richard  I  to  56  Henry  III, 
consist  of  records  of  the  still  undifferentiated  king's  bench  and  common 
pleas.    From  i  Edward  I  they  are  divided  into  coram  rege  and  de  banco  rolls. 

2  Curia  seems  to  be  less  readily  applied  to  the  shire  than  to  the 
hundred-courts,  perhaps  because  the  latter  were  oftener  in  private  hands. 


THE  HIGH  COURT  OF  PARLIAMENT  27 

No  one  is  therefore  indispensable  to  a  court  except  its 
lord  and  such  of  his  officials  as  are  required  to  transact  its 
business.     The  lord's  men  owe  suit  at  his  court  and  are 
liable  to  be  summoned ;  but  they  have  no  grievance  and  no  I 
remedy  if  he  dispenses  with  their  presence.     They  cannot, ' 
indeed,  be  tried  except  in  his  court ;  but  that  privilege  does 
not  give  the  individual  vassal  any  right  to  participate  in  the* 
trial  of  his  peers.     The  presence  of  a  single  peer,  when  the 
French  king's  court  tried  a  peer,  was  held  sufficient  to  give 
the  court  jurisdiction,  and  a  similar  rule  obtained  in  England 
when  a  peer  was  tried  in  the  court  of  the  lord  high  steward  ; 
the  peers  were  there  as  a  jury  to  establish  the  facts  and  not 
to  give  sentence.^     Their  rights  were  subject  to  the  same 
limitations  as  the  Englishman's  right  to  trial  by  jury  to-day. 
He  cannot  be  condemned  without  trial  by  jury,  but  he  has  / 
no  right  to  be  summoned  to  serve  on  any  particular  jury,  \ 
or  indeed  on  any  jury  at  all.      His  service  is  a  matter  of 
duty  and  obligation,  a  liability  but  not  a  right;   and  this  ' 
general  principle  pervaded  the  curia  regis  and  its  derivative 
institutions.^    The  baron's  notion  of  liberty  was  not  that 
he  had  a  right  to  attend  the  curia  regis  and  interfere  in  the  ^ 
king's  affairs,  but  that  the  king  had  no  right  to  invade  the  j 
courts  of  his  barons  and  prevent  them  from  doing  what  they  ' 
thought  fit  with  their  own.    They  only  valued  attendance 
as  a  means   of    checking  a  king  who  transgressed  their 
franchises,  and  Magna  Carta  was  designed  to  secure  the  local 
independence  of  barons  rather  than  the  national  responsi- 
bility of  kings.     The  king,  when  he  holds  his  court,  is  not 
therefore  bound  to  summon  any  particular  persons  to  assist 
him;  and  the  phrase  curia  regis  merely  impHes  the  king's 
official   attendance  for   certain  important    causes,   mainly 
judicial  in  character. 

The  king's  council  is  perhaps  by  Fleta's  time  a  more 

1  Luchaire,  Insiitutions  Franfaises.  p.  561;  Vemon-Ua.icouit,  His  Grace 
the  Steward  and  Trial  by  Peers,  p.  302.  .  ^       .    .   ^t    ■p]^^rnaP 

2  The  writ  of  summons  to  parliament  is  a  mandamus  ci.  -t-isynge, 
Modus,  p.  19,  ''  next  to  the  title'^is  considerable  the  form  of  the  ma^^^us 
how  it  is  to  the  lords  spiritual,  and  how  to  the  fiords  temporal  and  the 
judges  and  others  of  the  king's  learned  council. 


28  THE  EVOLUTION  OF  PARLIAMENT 

definite  organization ;  but  this  definiteness  has  probably  been 
exaggerated,  and  it  is  not  at  all  clear  whether  Edward  I 
had  one,  two,  or  three  different  kinds  of  council.  It  has 
been  usual  to  assume  at  least  a  plurality  of  councils;  but 
Maitland  confessed  his  inability  to  discover  more  than  one.^ 
The  subject  is  obscured  by  the  absence  of  both  the  definite 
and  indefinite  articles  from  the  Latin  language,  and  by  the 
indifference  with  which  medieval  clerks  and  chroniclers  wrote 
concilium  or  consilium.  Attempts  have  been  made  to  dis- 
tinguish the  two,  but  without  much  success;  and  we  may 
usefully  bear  in  mind  the  warnings  that  while  English 
medieval  clerks  wrote  in  Latin,  they  generally  thought  in 
French,^  and  that,  if  we  wish  to  interpret  aright  their  Latin 
words,  we  must  ascertain  the  French  equivalent.  Now  the 
French  have  only  one  word,  conseil,  for  the  Latin  concilium 
and  consilium,  and  for  our  ''  council  "  and  "  counsel  " ;  and 
it  is  by  no  means  improbable  that  where  we  see  '*  council," 
the  medieval  scribe  was  only  thinking  of  *'  counsel."  When 
the  draughtsman  of  Magna  Carta  says  that  extraordinary 
aids  are  not  to  be  levied  sine  communi  consilio,  and  that 
negotium  .  .  procedat  secundum  consilium  eorum  qui 
prcBsentes  fuerint,  it  is  clear  that  by  consilium  he  means 
'*  counsel  " ;  and  it  seems  rash  to  assume  that,  when  he 
goes  on  to  prescribe  the  machinery  ad  hahendimi  commune 
consilium,  he  means  "  for  the  purpose  of  holding  a  common 
council,"  and  not  **  for  the  purpose  of  obtaining  the  common 
counsel  "  or  consent.^  The  common  council  may  perhaps  be 
eliminated  from  the  hst  of  Edward  I's  advisory  bodies. 

Nor  is  it  easy  to  adduce  contemporary  and  official  evidence 
for  the  existence  of  a  magnum  concilium  in  Edward  I's 
reign,  and  it  is  tempting  to  take  shelter  behind  Maitland's 
authority,  and  assume  the  singleness  of  Edward's  councils. 
Nevertheless  a  magnum  concilium  had  made  itself  painfully 
evident  to  Henry  III  between  the  Provisions  of  Oxford 
and  the  battle  of  Evesham.     It  had,  indeed,  stepped  into 

^  Memoranda  de  Parliamento,  Rolls  Ser.  Pref.,  p.  Ixxxviii. 
8  Prof.  Tait  in  English  Hist.  Rev.,  xxvii.  720-8. 

'  Moreover,  tenere  and  not  habere  is  the  proper  word  for  "  holding  "  a 
court. 


THE  HIGH   COURT  OF  PARLIAMENT  29 

the  shoes  of  a  *'  mycel-gemot  "  in  the  time  of  William 
the  Conqueror ;  and  it  is  clear  that,  while  there  may  have 
been  only  one  council,  it  was  quite  possible  to  give  it  a 
varying  constitutional  complexion  and  personal  composition. 
The  council  dear  to  Edward  I  was  no  doubt  a  royal  council 
without  any  other  adjective,  a  council  dependent  upon  the 
king  and  representing  only  the  monarchical  principle.  But 
a  council  contemplated  by  the  barons  under  a  weak  and 
obstinate  sovereign  would  be  rather  a  magnum  concilium, 
a  king's  council  **  afforced  "  by  a  number  of  magnates, 
representing  the  barons,  ajid  embodying  their  alternative  to 
mo;iarchical  government.  At  least  it  is  certain  that  while 
we  can  find  little  about  a  magnum  concilium  under  Edward  I, 
we  can  read  a  great  deal  about  it  under  Henry  III  and 
Edward  II.  An  incompetent  king  generally  means  an 
incompetent  council;  and  when  the  king's  council  is 
incompetent,  it  has,  like  an  inadequate  jury,  to  be 
*'  afforced."  ^ 

The  council,  if  there  was  only  one,  was  obviously  an 
elastic  institution,  as  vague  in  its  composition  and  as 
indefinite  in  its  rules  of  procedure  as  was  the  cabinet  in  the 
first  quarter  of  the  eighteenth  century.  Like  most  important 
English  institutions  it  proceeded  from  the  crown,  but  was 
not  created.  As  the  cabinet  was  merely  a  meeting  of  "  the 
king's  servants,"  the  council  was  merely  a  meeting  of  the 
king's  counsellors ;  and  there  were  no  fixed  rules  determining 
who  these  servants  and  these  counsellors  should  be.  No  one, 
whatever  his  baronial  or  episcopal  rank,  had  any  inherent 
right  to  be  a  counsellor  of  the  king.  At  least,  this  is  the^ 
theory  of  the  council  under  Edward  I.  Doubtless  that  royal  ^ 
theory  was  not  the  conception  which  underlay  the  barons' 
attempts  to  make  an  instrument  of  government  out  of  a 
magnum  concilium  ;  but  it  passes  the  wit  of  man  to  construct 
a  logical  basis  for  a  magnum  concilium  like  that  indicated  m 
the  Provisions  of  Oxford.     WilHam  I's  magnum  concilium, 

1  This  chapter  was  written  early  in  1913.  Since  then  P^of  Baldmn's 
King's  Council  has  greatly  strengthened  the  case  against  the  existence 
of  a  multiplicity  of  councils. 


30  THE  EVOLUTION   OF  PARLIAMENT 

which  met  on  SaUsbury  Plain,  is  supposed  to  have  comprised 
all  the  tenants-in-chief  of  the  crown.  But  whether  a  vast 
and  tumultuous  council,  organized  on  this  tenurial  basis, 
ever  met  again  is  doubtful.  Magna  Carta  says  nothing 
about  a  magnum  concilium  or  its  rights ;  if  its  consilium  is 
a  council  at  all,  it  is  a  council  to  which  only  the  greater 
tenants-in-chief  were  to  receive  a  personal  summo^*  and 
this  differentiation  of  summons  would  enable  the  cW\^n  to 
discriminate  more  or  less  at  will  between  the  holders  of  a 
common  tenurial  qualification.  The  inability  of  the  barons 
to  formulate  an  alternative  constitutional  principle  in  1258 
reduced  them  to  the  crude  expedient  of  simply  naming  the 
individuals  who  were  to  afforce  the  council  and  control  the 
king.  Their  own  leader,  Simon  de  Montfort,  was  the  first  to 
discern  the  weakness  of  this  scheme,  and  to  set  the  example 
of  extending  the  franchise  in  order  to  break  down  an 
oligarchical  opposition.  The  baronial  "  afforcers  "  might 
themselves  be  afforced  by  lesser  barons,  knights,  and 
burghers.  Simon's  parliament  can  hardly  have  been  de- 
signed for  any  other  object  than  the  curbing  of  the  magnum 
concilium ;  and  Edward  I  had  similar  grounds  for  making 
parliament  a  representative  institution.  The  magnum  con- 
cilium might  be  swamped  in  parliament,  and  the  king's 
council  be  thus  relieved  of  its  independent  magnates. 

In  any  case,  the  council  in  Edward's  reign  is  freed  from  its 
great  baronial  incubus.  In  1305  there  are  barons,  prelates, 
and  earls  who  are  not  members  of  the  council,  while  judges 
/  and  plain  magistri  are ;  nearly  half  the  council  is,  in  fact, 
composed  of  these  non-baronial  elements.^  By  the  end  of 
Edward  Fs  reign  the  only  council,  of  which  there  is  any 
trace,  is  a  royal  and  royalist  body  sworn  to  advise  the 
king  truly  and  loyally,  to  disclose  his  counsel  to  no  one, 
to  maintain  the  rights  of  the  crown,  to  inform  the  king 

^  Maitland,  Memoranda,  pp.  Ixxxviii,  cvi.  In  1307,  when  Edward 
desired  the  presence  of  two  bishops  on  the  council,  they  had  to  be 
specially  sworn.  One  was  John  Salmon,  who  had  been  t)ishop  of  Norwich 
since  1299;  and  the  other,  Robert  Baldock,  "  qnem  rex  vult  esse  de 
consilio  regis,"  had  been  bishop  of  London  since  1304  {Rotuli  Parlia- 
mentorum,  i.  218). 


THE  HIGH   COURT  OF  PARLIAMENT^  31 

of  all  infringements  of  his  j^rogative,  to  be  no  respecters 
of  persons,  to  reveal  to  him'any  ties  incompatible  with  these 
duties,  and  to  contract  none  in  the  future  without  his 
consent. 

This  council  consisted  apparently  of  some  seventy  members. 
It  included  the  archbishop  of  Canterbury,  the  chancellor, 
the  treasurer,  five  earls,  four  bishops,  seventeen  barons, 
and  eflk  royal  officials;  there  were  also  twenty  judges, 
two  deans,  three  archdeacons,  one  canon,  one  notary  of  the 
apostolic  see,  and  six  who  are  simply  described  as  magistri, 
and  probably  transacted  the  secretarial  work,  political, 
diplomatic,  and  legal,  of  the  crown.  It  was  too  large  a  body 
for  administrative  routine,  and  there  is  no  reason  to  suppose 
that  the  seventy  often  sat  together.  Normally  they  would 
be  dispersed  for  divers  duties  and  scattered  in  all  the  quarters 
of  Edward's  dominions.  Earls  had  their  counties,  barons 
their  franchises,  bishops  their  sees  to  consider;  even  when 
employed  on  the  royal  business  they  would  be  in  Scotland, 
or  Wales,  or  across  the  Channel  on  military,  diplomatic,  or 
administrative  affairs  rather  than  sitting  in  council  at 
Westminster.  Judges  would  often  be  on  eyre,  or  busy  in 
courts  that  were  being  rapidly  differentiated  from  the 
council. 

On  occasions,  however,  which  were  at  first  spasmodic 
but  tended  to  grow  regular  and  solemn,  the  king  would  wish 
to  gather  all  his  advisers  together,  to  hold  his  court  in  his 
, council;  and  these  full  conclaves  of  his  council  are  his^^\ 
**  parliaments."  The  earliest  form  of  parliament  is  a  parley  V 
of  the  council ;  and  the  germ  of  these  parleys  may  be  traced 
in  the  joint  sessions  of  the  barons  of  the  exchequer  and 
justices  of  the  two  benches  which  Edward  I  instituted  in 
1284  to  deal  with  doubts  which  might  arise  with  regard  to 
the  interpretation  of  the  charters.^  "  In  the  great  court  of 
parUament,"  writes  Sir  Matthew  Hale  in  the  reign  of 
Charles  11,2  -  ^t  least  the  figure  and  model  of  the  consilmm 
regis  and  the  persons  whereof  it  consisted,  are  to  this  day 

1  Rot.  Pari.,  i.  225. 

2  Jurisdiction  of  the  Lords'  House,  p.  5o- 


32  THE  EVOLUTION  OF  PARLIAMENT 

preserved  in  the  lords'  house  in  parUament."  This  still 
remains  true  in  parts ;  we  have  never  completely  divorced  the 
king  in  council  from  the  king  in  parliament,  the  executive 
from  the  legislature.  It  is  because  the  king's  council  is 
embedded  in  his  parliament  that  the  king's  throne  is  in  the 
house  of  lords,  that  the  chancellor  is  present  ex  officio, 
that  judges,  law  officers  of  the  crown,  and  secretaries  of 
state  sit  on  the  woolsacks  as  late  as  the  sixteenth  century, 
and  that  the  act  of  1539  prescribes  places  for  the  council 
in  the  house  of  lords,  whether  they  are  peers  or  not. 

We  must  not,  however,  when  vagueness  attaches  to 
curia  and  concilium,  look  for  definiteness  in  the  use  of 
parliamentum.  While  Fleta  speaks  of  consilium  in  the 
singular,  he  speaks  of  parliamenta  in  the  plural.  Councils 
had  ceased  to  be  occasional  assemblies,  and  had  become 
a  habit.  Parliaments  are  still  in  the  occasional  stage 
of  development  in  which  the  plural  is  more  appropriate 
than  the  singular  because  there  is  no  continuity  between 
one  parliament  and  another,  and  each  may  have  its  own 
individual  constitution.  The  word  has  been  traced  as  far 
back  as  the  reign  of  Henry  IL^  It  was  certainly  used 
in   France  in   1239,^   ^Y   Matthew   Paris   about    1246,    in 

1  The  earliest  instance  I  have  found  of  the  use  of  the  word  occurs  in 
the  phrase  en  sun  plenier  parlement  of  Jordan  Fantosme,  who  wrote 
towards  the  end  of  Henry  II's  reign  {Chronicles  of  Stephen,  Henry  JI, 
and  Richard  I,  Rolls  Ser.,  iii.  226).  Bishop  Stubbs  uses  it,  inadvertently 
I  think,  of  an  assembly  held  at  Gaitington  in  11 89,  but  it  does  not  occai 
in  the  authorities  he  cites  {Introductions  to  the  Rolls  Series,  ed.  H  assail, 
p.  407).  In  1244  Alexander  II  of  Scotland  was  granted  a  safe-conduci 
"  in  coming  to  meet  the  king  or  his  council  in  Northumberland  .  .  , 
and  so  long  as  the  parliament  there  shall  last,"  and  on  August  15  following 
the  sheriff  of  Northumberland  was  ordered  to  pay  various  sums  for  crops 
trodden  down  on  account  of  "  the  parliament  "  held  between  the  king 
and  the  king  of  Scotland  (Bain,  Cal.  of  Docs,  relating  to  Scotland,  i.  Nos 
1647,  1651-2,  1658;  Henry  III  was  represented  at  this  "parliament' 
by  Richard,  Earl  of  Cornwall).  Here  parliamentum  means  no  more  thai 
a  parley;  and  in  this  sense  the  word  was  used  as  late  as  the  sixteenth 
century.  In  1539  it  is  applied  to  the  meeting  between  Charles  V  anc 
Francis  I  {L.  and  P.,  XIV.  ii.  649),  and  in  1542  to  one  between  Charles  \ 
and  the  Pope  {ibid.,  xvii.  1103;  State  Papers,  ix.  219).  Any  kind  o: 
consultation  might  be  called  a  parliament :  according  to  Sir  Roben 
Cotton  abbots  held  their  parliaments  {Cottoni  Posthurna,  p.  44) ;  so  die 
the  Inns  of  Court,  and  the  Stannary  Court  (Cow ell.  Law  Dictionary .  ea 
1727  s.v.  "  Parliament  "  ;  Trans.  Devon.  Association,  xi.  302  ;  4  Henry  ^'II1 
c.  8). 

2  Luchaire,  Institutions  Franpaises,  p.  562. 


THE  HIGH  COURT  OF  PARLIAMENT  33 

the  Provisions  of  Oxford  of  1258,  and  officially  from  1275 
onwards.^  But  its  meaning  had  not  crystallized  into  its 
modem  sense;  and  the  difference  between  the  English 
'parliament,  the  French  parlement,  and  the  Italian  farlamento  2 
indicates  the  vagueness  of  an  original  conception  which 
could  specialize  in  such  various  directions.  It  is  clear 
that  it  implied  no  sort  of  representation,  because  representa- 
tion was  never  a  feature  of  the  French  parlement  or  the 
Italian  parlamento  ;  and  even  in  England  the  word  is  used 
before  burgesses  or  knights  of  the  shire  had  been  summoned 
to  meet  the  council  at  Westminster.  As  late  as  1305  an 
assembly  can  still  be  not  only  a  parliament  but  a  "  full " 
parliament  after  every  one — earls,  bishops,  barons,  as  well 
as  knights  of  the  shire  and  burgesses — except  members  of 
the  council  has  been  dismissed.  "  Full "  may,  indeed,  be 
one  of  those  mistranslations  of  Latin  due  to  forgetfulness 
of  the  fact  that  the  Latin  word  is  itself  a  translation  from 
the  French.  In  pleno  parliamento  stands  for  en  plein 
parlement;  but  when  a  Frenchman  says  en  plein  air,  he 
means  in  the  open  air,  and  when  the  famous  Star  Chamber 
act  of  1487  prescribes  that  amercements  shall  be  assessed 
"  in  plain  sessions,"  it  means  in  open  sessions;  indeed,  they 
are  called  "  open  sessions  "  in  another  act  of  Henry  VII.^*. 
A  full  parliament  or  a  full  county  court  may  be  only  an 
open  parliament  or  court,  and  may  imply  the  publicity  of  its 
proceedings  rather  than  the  amplitude  of  its  composition. 

However  that  may  be,  the  application  of  the  phrase 
plenum  parliamentmn  to  an  assembly  consisting  solely  of 
councillors  suggest  that  a  session  of  the  king's  council  is 
at  first  not  merely,  as  Maitland  has  said,  the  core  of  every 

^  See  below,  p.  48.  .  .  -r^    ,  „     4.^  ^^ 

2  "  The  sitting  Signoria  had  the  power  of  summoning  a  Parlamento.  or 
gathering  of  the  whole  resident  population  of   Flore;ice.       (Armstrong. 

Lorenzo  de  Medici,  p.  29-)  _     ,    ^x-  ,    ^  ^r^^  ^ 

3  19  Hen.  VII,  cf  14.  See  my  note  in  Engl.  Hist.  Rev.,  xxx.  660-2, 
This  phrase  is  constantly  used  in  the  "  Rolls  "  of  the  P^^r^ly  l^gj),^^^^S 
and  has  no  reference  whatever  to  the  presence  of  specially  .summoned 
barons  or  generally  summoned  representatives.  Cf.  Rot.  ^fj'l:;^;^^'''^' 
In  Rot.  Pari.,  i.  179  we  have  "in  pleno  scaccano  "  Moreover  when 
fullness  is  meant  we  have  pleiniere  paylenient  {Rot  Pari.  "•  232j>)  ^^mcn 
corresponds  to  the  French  coMr  pleiniere.    Cf.  Selden,  Judicature,  p.  105. 


34  THE  EVOLUTION  OF  PARLIAMENT 

parliament,  but  the  whole  parhament,  and  that  the  addition 
of  earls,  prelates,  barons  and  popular  representatives,  while 
it  added  to  the  taxing  powers  of  the  assembly,  added  nothing 
to  the  judicial  and  legislative  authority  wielded  by  the 
council  in  parliament ;  and  it  has  often  been  remarked  that 
the  great  legislative  enactments  of  Edward  I  were  not  even 
promulgated  in  a  representative  assembly.  Nor  did  this 
legislative  capacity  of  the  king's  "  council  learned  in  the 
law  "  cease  in  the  thirteenth  or  fourteenth  century.  It 
is  true  that  enactments  were  to  an  increasing  extent  sub- 
mitted to  the  representative  body  for  ratification;  but  as 
late  as  the  sixteenth  century  the  year  books  of  Henry  VI I' s 
reign  show  that  the  main  principles  of  his  legislation  were 
formulated  by  the  judges  in  common  session  before  sub- 
mission to  either  "  house  "  of  parliament;  ^  and  in  Henry 
VIIFs  reign  it  was  the  custom  of  the  lords  in  parliament  to 
secure  copies  of  bills  introduced  in  the  house  of  commons 
and  take  the  opinion  of  the  judges  upon  them  before  they 
were  sent  up  from  the  lower  house. ^  "  Do  not  gloss  the 
statute,"  remarked  the  chief  justice  to  counsel  in  1305.  *'  We 
understand  it  better  than  you,  for  we  made  it."  ^ 

Parliament,  therefore,  in  its  judicial  and  legislative  aspect, 
seems  to  be  at  first  simply  a  talk  or  parley  of  the  council 
in  full  session.  Soon,  of  course,  it  comes  to  be  used  of 
parleys  between  the  king  in  council  and  other  constitutional 
elements.  By  the  Provisions  of  Oxford  twelve  elected  barons 
are  to  meet  the  king's  council  at  three  parliaments  a  year. 
Simon  de  Montfort  *'  afforces  "  the  elected  barons  with  elected 
knights  of  the  shire  and  burgesses ;  and  the  growing  financial 
needs  of  the  crown  promoted  frequent  recourse  to  these 
representative  elements  which  alone  could  produce  an 
adequate  financial  supply.  But  this  financial  business  was 
not  the  original  nor  the  most  frequent  cause  of  parliaments ; 

1  Cf.  Vinogradov,  "  Const.  Hist,  and  the  Year  Books  "  in  Law  Quarterly 
Rev.,  July  1913. 

2  Letters  and  Papers,  Henry  VIII,  XII  i.  901  [39,  40] ;  English  Hist. 
Rev.,  V.  568. 

3  Year  Books  33-5  Edward  I  (Rolls  Ser.),  p.  82 ;  Mcllwain,  High  Court 
of  Parliament,  p.  325;  Baldwin,  p.  314. 


THE  HIGH   COURT  OF  PARLIAMENT  35 

and  a  perusal  of  the  earlfest  **  rolls  of  parliament  "  reveals 
activities  of  a  different  and  comprehensive  character. 
Nothing,  indeed,  is  more  striking  than  the  multifarious 
nature  of  the  business  there  recorded.  Page  after  page  reads 
exactly  like  the  register  of  the  privy  council  of  the  sixteenth 
century;  ^  there  are  minute  details  of  the  provision  to  be 
made  for  the  wars  in  Wales  or  on  the  Scottish  borders, 
for  Edward  Ill's  campaigns  in  France,  for  the  regulation  of 
prices,  and  for  the  administration  of  justice.^  The  records 
deal,  in  fact,  with  the  doings  of  a  body  which  is  at  once 
executive,  judicial,  and  legislative ;  and  the  presence  of  the 
council  in  the  parliament  is  patent  in  its  rolls. 

Mainly,  however,  the  business  of  Edward  I's  parliaments 
is  to  deal  out  justio^^The  title-page  of  each  of  the  printed 
volumes  of  the  Rotuli  Parliamentorum  indicates  its  contents 
as  consisting  mostly  of  petitiones  et  placita ;  the  memoranda 
de  parliamento,  which  will  ultimately  expand  into  Lords' 
and  Commons'  Journals,  when  the  petitiones  have  been  for 
the  most  part  referred  to  other  courts  and  the  placita 
heard  elsewhere,  occupy  but  little  space.  It  is  not  until 
late  in  Edward  Ill's  reign  that  we  get  a  regular  series  of 
rotuli  parliamentorum ;  and  some  of  the  contents  of  the 
printed  **  Rolls  of  Parhaments  "  are  suspiciously  like  the 
coram  rege  rolls  of  the  king's  bench  which  had  hardly  in 
Edward  I's  reign  been  differentiated  from  the  king's  council. 
The  purpose  of  parhaments  is  judicial :  *'  whereas  "  runs  an 
ordinance  of  the  Lords  Ordainers  in  1311,'  "  many  folk  are 
delayed  in  the  king's  court  because  the  defendants  allege 
that  the  plaintiffs  ought  not  to  be  answered  in  the  absence 
of  the  king,  and  many  also  are  wronged  by  the  ministers 
of  the  king,  which  wrongs  they  cannot  get  redressed  without 
common  parhament,*  we  ordain  that  the  king  hold  a  parha- 

1  There  are  half  a  dozen  entries  of  this  character  on  the  first  page  of 
the  first  volume  of  the  printed  Rotuli  Parliamentorum. 

2  Rotuli  Parliamentorum,  i.  295.  35o-i.  "•  108-11,  114  if. 


*  ''^^.s'com'mSi-parlement'' has  fortunately  not  been  u^^^^^^^^^^ 
the  existence  of  a  " Common  Parliament."  like  ^Common  Council  mstinct 
from  other  assemblies.    The  phrase  clearly  indicates  the  nature  ot  tne 
parliaments. 


36  THE  EVOLUTION  OF  PARLIAMENT 

ment  once  a  year,  or  twice  if  need  be,  and  that  in  a 
convenient  place.  And  in  the  same  parHaments  shall  pleas 
that  have  been  delayed  and  pleas  about  which  the  judges 
differ  be  recorded  and  determined,  and  in  the  same  way 
the  bills  which  shall  have  been  handed  into  parliament." 
This  ordinance  was  made  in  answer  to  a  complaint  that 
the  commons,  who  came  to  parliaments  to  seek  redress 
for  grievances  which  could  not  be  remedied  by  common 
law  or  by  any  other  way  than  special  process,  found  no 
one  to  receive  their  petitions  as  they  had  done  in  the  reign 
of  Edward  I.^  \  Primarily  a  parliament  is  a  high  court  of  > 
|i  justice. 

^     'In  this  sense  the  origin  of  parliaments  must  be  traced  back 

'  to  Henry  II  rather  than  to  Simon  de  Montfort  or  Edward  I. 

If  Henry  had  not  made  the  king's  court  the   matrix  of 

England's  common  law,  neither  Simon  nor  Edward  could 

have  made  it  the  matrix  of  England's  common  politics ;  for 

a  foundation  of  common  law  was  indispensable  to  a  house 

i  of  common  politics.     Henry  had  made  the  courts,  held  in 

lihis  palace  at  Westminster,  the  common  resort  for  all  his 

■'subjects  above   the  rank   of   villeins.^     By   inviting   and 

attracting  thereto  men  from  all  quarters  of  England,  he  had 

given  them  a  common  framework  for  their  ideas  of  law  and 

liberty.      He  had  made   escape  from  local  trammels  and 

recourse  to   a  national  fount   of   ideas  a  habit  with  his 

people.     Even  during  the  troublesome  reign  of  Henry  III, 

the  king's  court  increased  the  number  of  forms  of  writ  or 

judicial  process  from  sixty  to  over  four  hundred  and  fifty ;  ^ 

and  every  new  process  was  a  fresh  nerve  developed  between 

the  monarchy  and  its  subjects,  a  fresh  means  of  linking  the 

braip  ^ith  the  body  of  the  community. 

\_5l^hat  the  main  function  of  Edward  I's  parliaments  is  to 

fcontinue  and  expand  the  work  of  Henr)^  IFs  curia  regis 

I  will  appear  from  the  briefest  indication  of  their  procedure. 

^  The  first  step  towards  the  holding  of  a  parliament,  after  its 

^  Rotuli  Parliamentorum,  i.  444. 

2  "  Le  paleys  soleit  le  plus  frank  leu  d'Engleterre  "  {ibid.,  i.  1^5)- 

'  Maitland,  Collected  Papers,  ii.  155  ;cf.  ibid.,  ii.  476. 


THE  HIGH   COURT  OF  PARLIAMENT  37 

summons  had  been  decided,  the  writs  issued,  and  the  repre- 
sentatives, if  any,  elected,  was  to  make  pubhc  proclamation 
in  the  great  hall  of  Westminster  Palace  (for  Westminster 
Hall  was  the  "  aula  "  in  which  the  king,  like  every  feudal 
lord,  held  his  court),  in  the  chancery,  in  the  court  of  common 
pleas,  in  the  exchequer,  in  the  guildhall,  and  in  Westcheap 
that  all  who  wished  to  present  petitions  at  the  approaching 
parliament  should  hand  them  in  by  a  certain  date.^ 
*'  Thereupon,"  we  are  told  by  William  de  Ayremynne,  the 
clerk  of  chancery  appointed  by  Edward  II  to  keep  the 
memoranda  of  the  parliament  of  Lincoln  in  January  13 16, 
''  the  chancellor,  the  treasurer,  and  the  justices  of  either 
bench  were  ordered  to  draw  up  in  writing  a  brief  statement 
of  the  suits  (negotia)  pending  before  them  (in  suis  placeis) 
which  could  not  be  determined  out  of  parliament,  and  refer 
them  to  parliament  so  that  right  might  be  done  therein."  2 
Receivers  and  triers  of  petitions  were  next  appointed.  The 
receivers  were  merely  clerks  in  chancery;  the  triers  were 
more  important  persons,  at  first  mainly  judges,  afterwards 
prelates,  earls,  and  barons.  Their  functions  have  not  been 
precisely  ascertained.  Sometimes  they  were  called  "  hearers 
of  petitions,  and  their  commission  authorized  them  to 
"  determine  "  as  well  as  to  "  hear  " ;  but  whether  a  hearing 
and  determination  by  them  in  parliament  amounted  to  a 
hearing  and  determination  by  parliament  is  a  matter  of 
doubt.3  It  is  well,  perhaps,  to  remember  that  parhament 
is  not  yet  an  institution  or  a  body,  but  only  a  "  parley," 
that  parliamentum  and  colloquium  are  interchangeable 
terms,  and  that  while  the  king  in  his  council  in  parley  may 

1  Memoranda  de  Parliamento,  p.  Ivii.;  Rot.  Pari.,  i.  182. 

'  Mcllwa[n;  The  High  Court  of  Parliament  pp.  ^98-202  The  relation 
of  the  "  auditores  "  to  the  council  is  also  obscure.  In  1314  ^^e  read  ot 
"  responsiones  petitionum  Anglic  per  auditores  ^f  ™df^"L,f^ff_^d 
parliamento  "  as  though  the  ''auditores''  determined  the  peiitio^^^^^^^ 
not  the  council  as  a  whSle.  But  the  form  of  answer  is  ^^^^y^  .  W^^^P 
est  per  consilium  "  {Rot.  Pari.,  i.  314)-  Probably  the  contradicts^  The 
verbal.  Consilium  was  then  no  more  executive  ^^^^  P^'llZf^^'^y  seal 
executive  consisted  of  the  agents  of  the  crown  the  c^an^^^^.^vK  counsel 
and  so  forth ;  and  auditores,  appointed  by  the  king,  expressed  the  counsel 
taken  on  parliamentary  petitions. 


38  THE  EVOLUTION  OF  PARLIAMENT 

do  much,  it  is  hard  to  imagine  the  "  parley  "  doing  any- 
thing whatsoever  independently  of  the  crown.  We  must 
not  consolidate  our  nebulae  or  materialize  our  parliaments 
in  a  hurry. 

The  principles  and  methods  of  dealing  with  these  petitions 
in  parliament  adopted  by  the  king  in  council  can  only  be 

^  inferred  from  the  imperfect  records  of  its  practice.     With 
N{^  \[  some  he  will  decline  to  deal  at  all.     Even  in  the  high  court 

,  of  parliament  the  king  will  not  yet  interfere  between  a  lord 
>v    of  the  manor  and  his  villeins.     Canon  law  and  custom  do  not 

'  permit  him  to  meddle,  even  on  a  clerical  petition,  with  the 
spiritual  jurisdiction  of  the  courts  christian ;  ^  and,  in  spite 
of  the  Constitutions  of  Clarendon,  Edward  I  will  not  attempt 
to  enforce  clerical  purgation  after  the  first  conviction  of 
a  clerk  in  the  king's  court.  So  far  as  criminous  clerks, 
although  convicted  of  murder,  are  concerned,  while  he 
insists  upon  judgement,  he  leaves  execution  to  the  indulgent 
hands  of  the  church. ^  Nor  will  the  king  in  parliament 
supersede  the  common  law ;  as  early  as  1280  complaint  had^ 
been  made  that  folk  came  to  parliaments  with  all  sorts  of 
petitions  that  might  be  heard  by  the  chancellor  or  the 
judges,  and  an  ordinance  was  issued  that  none  should  be 
brought  before  the  king  and  his  council  save  those  which 
could  not  otherwise  be  determined.  Frequently  the  ren^edy 
consists  in  the  grant  of  a  writ  or  a  jury ;  sometimes  advice 
is  all  that  is  needed,  and  it  may  be  caustic  enough ;  he  has 
suffered  no  wrong  so  far,  a  petitioner  is  told,  let  him  wait 
till  he  has.^  Some  Jews  who  complained  of  forcible  baptism 
are  informed  that  they  specify  no  particulars,  and  that  in 
any  case  the  king  has  no  mind  to  revoke  a  christening. 
As  a  rule  the  king  and  his  council  in  parliament  prefer  to 
play  the  part  of  general  practitioners  rather  than  that  of 

1  Rot.  Pari.,  i.  3a. 

2  Ihid.,  i.  41-2 ;  but  when  the  offence  was  counterfeiting  the 
king's  seal,  the  clerk  convict  was  handed  over  to  his  bishop  "  sub  poena 
et  in  forma  qua  decet;  quia  videtur  consilio  quod  in  tali  casu  non  est 
admittenda  purgatio  "  {ihid.,  i.  406).  It  seems  to  have  been  permissible, 
however,  for  "  the  king's  lieges  "  to  oppose  the  purgation  of  a  clerk 
convicted  of  murder  or  felony  {ihid.,  i.  100). 

3  Ihid.,  i.  46. 


THE  HIGH  COURT  OF  PARLIAMENT  39 

specialists.  The  vast  majority  of  clients  are  referred  to 
chancery,  the  courts  of  exchequer,  or  common  pleas;  and 
this  practice  of  reference  was  systematized  by  an  ordinance 
of  1291-2.  It  was  there  laid  down  that  the  receivers  were 
to  examine  the  petitions  presented  to  parliament  and  sort 
them  into  five  bundles,  one  for  chancery,  one  for  the  ex- 
chequer, one  for  the  judges,  one  for  the  king  and  his  council, 
and  one  to  consist  of  petitions  which  had  already  been 
answered. 

In  most  of  these  cases  it  is  clear  that  the  value  of  parlia- 
ment to  the  petitioner  consisted  not  in  the  revision  or  the 
reversal  in  parliament  of  decisions  already  given  in  the 
courts  of  common  law,  but  in  the  function  it  fulfilled  of 
"moving**  those  courts;  and  the  "moving"  was  often 
as  peremptory  as  it  was  necessary.  ^  Not  infrequently  the 
judges  who  had  delayed  a  decision  for  years  were  ordered 
to  reach  one  before  parliament  ended,  which  might  be  a 
period  of  a  few  days  and  was  never  more  than  a  few  weeks. 
Delay,  too,  often  arose  not  out  of  the  dilatoriness  of  the 
judges,  but  out  of  the  novelty  of  the  case.  Chancery 
would  issue  writs  de  cursu  for  ordinary  suits  by  its  own 
authority ;  but  it  would  not  issue  "  original  "  writs  instituting 
novel  forms  of  procedure  without  being  moved  thereto  by 
the  authority  of  the  king  in  council  and  eventually  of  the 
king  in  council  in  parliament.  In  a  famous  clause  of  Magna 
Carta  John  or  his  barons  had  promised  that  justice  should 
not  be  sold  or  delayed;  an.d. Bishop  Stubbs_has~said  that  { 
the  Confirmatio  Cartarum  of  1297  stood  to  Magna  Carta  j 
in  the  relation  of  substance  to  shadow,  of  performance  to  \ 
promise.  With  respect  to  the  delay  of  justice,  it  was  in 
and  by  parliament  that  some  security  was  afforded  for  the 
performance  of  the  promise. 

Only  petitions  of  special  difficulty  or  of  novelty  were 
reserved  for  hearing  by  the  king  and  council,  and  led  to 
"placita"  in  parliament.  Some  of  these  might  have 
previously  been  heard  in  some  other  court;  but  it  does  not 
appear  correct  to  interpret  the  phrase  "high  court"  of 

^  "  Fiat  justitia  durante  parliamento  "  {ibid.,  i.  325«)- 


40  THE  EVOLUTION  OF  PARLIAMENT 

parliament  as  meaning  a  supreme  court  of  appeal.  It 
acted  more  often  as  a  court  of  first  instance  than  as  a  court 
of  error.  1  "  High  "  was  perhaps  used  in  the  sense  in  which 
we  speak  of  highways  in  distinction  to  byways,  and  of  the 
high  seas  in  distinction  to  the  narrow  seas.  The  high  seas 
are  called  high  because  they  are  open  and  common  to  all, 
and  a  parliament  is  called  a  "  high  "  court  because  it  is 
le  plus  frank  leu  d'Engleterre,  the  most  open  and  free 
of  all  English  courts.  Possibly  the  freedom  of  parliament 
implied  some  immunity  from  the  law's  expense  as  well  as 
from  its  delays. ^  Certainly  in  courts  like  the  later  Star 
chamber  and  court  of  requests,  which  inherited  some  of 
the  traditions  of  the  high  court  of  parliament,  justice  \^as 
freely  administered ;  and  there  may  have  been  some  ex- 
travagant hope  that  the  promise  of  Magna  Carta  that  justice 
should  not  be  sold  meant  that  no  charge  would  be  made  for 
its  administration.  That  was  doubtless  a  fond  delusion; 
fees  were  required  for  royal  writs  ^  and  other  legal  expenses, 
but  it  seems  that  no  charge  was  made  for  the  expedition 
of  suits  in  parliament. 

However  that  may  have  been,  parliament  was  only  a 
court  of  appeal  in  the  sense  that  the  house  of  commons 
or  of  lords  is  a  court  of  appeal  from  its  committees.     The 
several  courts..Qf  the-  cuna  regis  .:^,eTe.Jx\ .  a  sense  its  com- 
mittees :    in    parliament    the    judges   and    council    sat   in 
i  common  or  joint  session,  and  there  decided  cases  reported 
I  to  them ;  the  whole  was  held  to  be  greater  than  the  part, 
[in  authority  and  legal  wisdom  as  well  as  in  size.     The 
^court  held  coram  rege  et  consilio  suo  ad  parliamcnta  sua  is 
greater  than  the  court  held  coram  rege  et  consilio  suo,  just 
as  the  latter  is  greater  than  the  court  held  coram   rege. 
This  last  comes  to  be  the  king's  bench ;   from  the  second 
comes  the  jurisdiction  of  the  king's  council,  and  from  the 

1  Maitland,  Memoranda,  p.  Ixxxv. 

2  Prof.  Baldwin  has  since  established  this  supposition  {Ki'Ag's  Council, 
p.  282). 

3  In  1348  the  fee  for  a  writ  out  of  common  pleas  was  yd.,  and  out  of 
king's  bench  6d.;  the  commons  wanted  yd.  and  6d.  writs  for  3>;J.  {Rot. 
Pari.,  ii.  170). 


THE  HIGH  COURT  OF  PARLIAMENT  41 

first  the  supreme  jurisdiction  of  the  high  court  of  parlia- 
ment.^  This  whole,  moreover,  contained  more  than  its 
expert  judicial  parts,  and  the  members  of  the  council  who 
were  not  judges  added  to  this  joint  session  of  the  courts 
a  lay  element  which  represented  the  common  sense  of  the 
high  court  of  parliament.  The  influence  of  this  lay  element 
upon  judicial  decisions  is  characteristic  of  the  political  spirit 
of  England,  where  parliament  lays  dov/n  the  legal  principles 
upon  which  judges  have  to  act.  But  it  was  certainly  a 
singular  by-product  of  this  constitutional  maxim  when  the 
peers  in  the  nineteenth  century  reduced  the  judges  to  insig- 
nificance in  the  high  court  of  parliament,  and  developed  the 
practical  paradox  that  the  competence  of  the  lay  mind  to 
exercise  supreme  judicial  authority  depended  upon  the 
accident  of  primogeniture.  The  only  trace,  if  any,  of  this 
hereditary  monopoly  of  supreme  appellate  jurisdiction  in  the 
time  of  Edward  I  is  in  the  presence  of  earls  and  barons, 
who  have  as  yet  no  hereditary  right  to  a  summons,  in 
parliament.  "  The  king,"  to  quote  Fleta  once  more,  "  has 
his  court  in  his  council  in  his  parliaments,  in  the  presence 
of  earls,  barons,  nobles,  and  others  learned  in  the  law, 
where  judicial  doubts  are  determined,  and  new  remedies 
are  established  for  new  wrongs,  and  justice  is  done  to 
every  one  according  to  his  deserts."  ^ 

Fleta's  encomium  may  be  somewhat  too  generous,  but 
there  can  be  no  doubt  as  to  the  magnitude  and  the  import- 
ance of  the  judicial  work  of  parliaments  under  Edward  I. 
Two  hundred  and  fifty  petitions  were  presented  to  the 
parliament  of  Michaelmas,  1290,  although  two  other  parlia- 
ments had  already  been  held  that  year,  one  in  January 
and  another  in  April.^  Five  hundred  have  been  preserved 
for  one  of  the  two  parliaments  of  1305 ;  so  that  even  the 
thousands  which  remain   in  the   Record  Office  probably 

1  Maitland,  Memoranda,  p.  Ixxx;  Rot.  Pari.,  i.  15.  38,  128. 

2  Maitland,  Memoranda,  p.  Ixxxi.  Pollock  and  Maitland  s  reading  of 
iuris  peritis  for  uiris  peritis  {Hist,  of  English  Law.  1.  179  «•  \)  is  adoptea 
by  Baldwin;  cf.  Rot.  Pari.,  ii.  i:  "  placita  coram  domino  rege  et 
consilio  suo  apud  W^estm'  in  presencia  ipsius  dommi  regis,  piocerum, 
et  magnatum  regni  in  parliamento  suo  ibidem  convocato. 

3  Rot.  Par!.,  i.  46-65. 


42  THE  EVOLUTION  OF  PARLIAMENT 

represent  only  a  fraction  of  the  petitions  sent  up  to 
parliaments  between  the  reign  of  Edward  I  and  that  of 
Richard  III.  They  come  from  all  sorts  and  conditions  of 
men  and  corporate  bodies,  and  from  every  quarter  of  the 
king's  dominions;  a  king  of  Norway  as  well  as  a  king  of 
Scotland  is  found  petitioning  Edward  I  in  his  parliament ;  ^ 
Edward  Fs  own  daughter  Mary  is  represented,  and  the  king 
himself  prosecutes  his  suits  there  by  his  attorneys.  Earls, 
bishops,  and  barons ;  abbots,  abbesses,  and  abbeys ;  shires, 
cities,  and  boroughs ;  judges,  royal  officials,  and  foreigners ; 
merchants  and  Jews ;  the  scholars  of  Oxford  ^  and  Cam- 
bridge; poor  men  of  this  and  that  shire  or  borough;  and 
even  a  body  of  prisoners,  all  expect  justice  or  favour  in 
parliament.  The  petitions,  indeed,  are  mostly  from 
individual  persons  or  corporate  bodies;  they  are  not  the 
common  petitions  of  the  people  of  England.  Nevertheless, 
if  we  assume  that  on  an  average  a  score  of  persons 
are  interested  in  each  petition,  and  in  some  the  number 
would  rise  to  hundreds,  we  shall  see  that  thousands  of 
people,  many  of  them  influential,  would  be  concerned 
in  the  holding  of  every  parliament,  and  would  have  legal 
business  to  transact  which  could  not  be  settled  elsewhere. 

Here  we  light  upon  a  motive  for  frequent  parliaments 
upon  which  adequate  stress  has  not  been  laid.  We  assume 
that  the  foundation  of  parliament  was  financial,  and  that 
its  growth  was  due  to  the  necessities  of  the  king  and  to  the 
control  by  parliament  over  the  national  purse.  No  one  will 
deny  that  finance  has  played  an  important  part  in  the 
development  of  representative  institutions;  but  there  are 
two  reasons  against  regarding  finance  as  the  sole  factor  in 
the  foundation  of  the  English  parliament.  In  the  first  place 
it§  earliest  function  was  judicial,  and  financial  only  in  the 
sense  in  which  Henry  rediscovered  that  justitia  was  magnum 
emolumentum.    In  most  of  the  parliaments  assembled  byi 

^  Rot.  Pari.,  i.  105,  107-13,  225;   Maitland,  Mem.,  p.  9. 

"  Oxford,  indeed,  sent  a  dozen  petitions  to  a  single  parliament  in  1305 
{Memoranda,  pp.  44-7) .  There  is  also  a  petition  from  the  j  udges,  barons  of 
the  exchequer,  and  clerks  for  the  payment  of  the  arrears  of  their  salaries 
{ibid.,  p.  49). 


THE  HIGH   COURT  OF  PARLIAMENT  43 

gdward  I  and  Edward  II,  if  notalsoJa^z^^gdward  III,  no 

finSraaT'^Strp^-wa^'^'as^ed^for^   and  none  °was^~gi*anted. 

f  Secondly,    the    frequent  summons    of   parliaments   was   a 

/  measure  required  not  by  the   crown  so  much  as  by  its 

Isubjects.j  It  is  the  barons  who  in  1258  demand  three  annual 

pSfii'aments ;   it  is  the  Lords  Ordainers  wKcTiiistsf  upon  one 

or  more  sessions  a  year ;  and  it  is  the  commons  who  take  up 

the  cry  under  Edward  III.     We  cannot  believe  that  barons 

or  burghers  wanted  to  come  to  Westminster  in  order  to  be 

taxei  threo^lipies  or  even  once  p,  year.     So  far  as  taxation 

went,  they  would  have  gladly  surrendered  their  control,  if 

they  could  thereby  escape  the  taxation.     If  they  desired 

parliaments  at  all,  it  waa^ior  the  justice  Jtherem  dispensed, 

and  not  for  the  taxation  therein  imposed. 

It  was  to  a  high  court  of  law  and  justice  that  the  taxin^i 
and  representative  factors  of  parliament  were  wedded-JS 
and  it  was  this  union  that  gave  the  English  parliament  its 
strength.  Its  absence,  the  divorce  between  French  farle- 
ments  and  estates,  was  fatal  to  orderly  constitutional  develop- 
ment in  France.  "  Whenever  a  separation  is  made  between 
liberty  and  justice,"  said  Burke, "  neither  is  in  my  opinion 
safe."  Justice  and  liberty  were  the  woof  and  the  warp  out 
of  which  was  woven  the  web  of  the  English  constitution ;  but 
the  English  people  had  to  endure  discipline,  law,  and  order 
before  they  could  safely  afford  the  luxury  of  liberty;  and 
the  high  court  of  parliament  comes  before  the  house  of 
commons. 


CHAPTER  III 

EDWARD   I's    PARLIAMENTARY   MODELS 

Enough  has  been  said  in  the  previous  chapter  to  indicate 
the  inadequacy  of  the  view  which  sees  in  parhament  nothing 
but  the  development  of  the  principle  of  political  representa- 
tion; but  before  we  proceed  to  discuss  that  infehcitous 
phrase,  the  three  estates,  which  has  been  commonly  used 
to  describe  the  form  that  representation  took  in  parliaments, 
it  may  be  well  to  examine  a  little  more  in  detail  the  various 
assemblies  to  which  the  word  parliament  was  applied  in 
the  latter  half  of  the  thirteenth  century.  Hitherto  we  have 
generalized  mainly  from  the  proceedings  of  one  of  the 
parhaments  of  1305,  the  records  of  which  have  come  down 
to  us  in  a  completer  form  than  those  of  any  previous  parlia- 
ment. But  the  importance  of  the  subject,  and  the  efforts 
still  being  made  by  the  house  of  lords  to  discover  the  first 
real  parliament  and  to  elaborate  a  principle  of  discrimi- 
nation, by  which  to  decide  peerage  claims  based  upon 
Edward  I's  writs  of  summons,  justify  an  attempt  to 
elucidate  the  meaning  of  the  word  "  parliament,"  to  illus- 
trate the  variety  of  its  applications,  and  to  prove  the 
impossibility  of  drawing  hard  and  fast  lines.  There  is  httle 
to  comfort  the  committee  of  privileges  in  this  investigation ; 
but  the  idea,  upon  which  peerage-law  has  been  grounded, 
that  Edward  I  created  or  dreamt  of  creating  hereditary 
peerages  by  special  writs  of  summons  to  parliaments  is 
historically  so  fantastic  that  no  historian  need  feel  com- 
punction in  adding  to  the  difficulties  which  lawyers  have 
created  for  themselves  by  their  defiance  of  history.^ 

^  Cf .  J.  H.  Round,  Studies  in  Peerage  and  Family  History,  1900,  and  Peerage 
and  Pedigree,  1910;  Gibbs,  pref.  to  2nd  ed.  of  G.  E.  Cokayne's  Complete 
Peerage,  p.  xiii :  "  it  is  impossible  to  reconcile  the  facts  of  history  with  the 
Law  of  Peerage." 

44 


EDWARD   I's    PARLIAMENTARY  MODELS  45 

Important  historical  questions  are,  moreover,  involved  in 
the  discussion,  and  the  truth  about  the  origin  of  English 
parliaments  can  never  be  a  matter  of  indifference ;  antiqui- 
ties may  be  ignored,  but  not  the  beginnings  of  political  or 
of  any  other  form  of  life.  All  origins  are,  however,  obscure, 
not  merely  from  the  defect  of  records,  but  because  they  are 
imperceptible  to  contemporary  observers ;  and  it  is  a  shallow 
interpretation  to  regard  parliaments  as  the  creation  of 
Simon  de  Montfort  or  of  Edward  I,  or  indeed  as  a  creation 
at  all.  It  is  rather  a  growth  from  roots  stretching  back 
beyond  the  thirteenth  century  to  a  period  long  before  the 
summons  of  burgesses  or  even  of  knights  of  the  shire  to 
Westminster.  The  issue  of  Simon's  and  Edward's  writs 
did  not  evoke  a  new  institution  out  of  the  void ;  they  merely 
grafted  new  buds  on  to  the  old  stock  of  the  curia  regis,  and 
it  was  the  legal  sap  of  the  ancient  stem  that  fed  and  main- 
tained the  life  of  the  medieval  parliament.  The  species, 
indeed,  was  the  same,  otherwise  the  grafting  would  have 
failed ;  for  law  is  a  branch  of  politics,  and  even  the,  seed 
of  representation  was  raised  in  a  legal  frame.  On  the  other 
hand,  Henry  II  had  differentiated  law  from  politics  by 
converting  the  curia  regis  from  an  occasional  meeting  of 
turbulent  barons  into  a  regular  court  of  expert  judges ;  and 
it  was  the  work  of  Edward  I  to  reunite  these  divergent 
elements  in  the  high  court  of  parliament. 
1}  The  obscurity  of  this  process  of  reunion  is  darkened  by 
'-nebulous  terminology,  and  the  term  parhament  is  applied 
in  the  latter  half  of  the  thirteenth  century  to  each  of  the 
two  coalescing  factors  as  well  as  to  the  coalition.  The 
common  denominator  of  such  various  values  is  bound  to  be 
small,  and  almost  any  sort  of  conference,  in  which  the  crown 
was  involved,  might  be  called  a  parliament.  But  even  so 
general  a  word  as  *'  conference  "  may  acquire  specialized 
characteristics,  and  come  to  be  spelt  with  a  capital ;  to  a 
Wesleyan  Methodist  the  term  "  conference  "  means  a  definite 
body  which  meets  annually  and  performs  numerous^  binding 
acts  recorded  in  "  Minutes  of  Conference."  So  "  parlia- 
ment," while  remaining  a  vague  and  general  term  to  some. 


46  THE  EVOLUTION  OF  PARLIAMENT 

becomes  a  term  of  art  to  others,  and  acquires  in  time  distinc- 
tive records.  The  process  is  common  to  England,  France, 
Italy,  and  possibly  other  countries ;  and  while  the  specializa- 
tion of  meaning  takes  different  forms,  it  seems  probable 
that  in  Edward  I's  reign,  at  any  rate,  there  was  greater 
similarity  between  the  French  "  parlement  "  and  the  English 
"  parliament  "  than  has  usually  been  supposed}. 

At  any  rate,  the  use  in  England  did  not  at  first  imply  any 
notion  of  representation  or  election ;  for  when  Matthew  Paris 
first  uses  it  to  describe  a  meeting  in  1246,^  he  enumerates 
its  constituent  parts  as  "  prelates,  both  abbots  and  priors 
as  well  as  bishops,  and  earls  and  barons,"  and  the  fact 
that  he  calls  this  parliament  "  generalissimum,"  implies  that 
an  even  less  comprehensive  assembly  might  have  been  called 
a  **  parliament "  with  equal  propriety.  The  word,  indeed, 
has  no  special  signification  for  him,  because  two  years  later 
he  describes  a  more  general  assembly  comprising  milites 
and  clerici  as  well  as  bishops,  abbots,  priors,  earls,  and 
barons,  without  calling  it  a  parliament.^  In  125 1  and 
again  in  1257  ^^  speaks  of  a  magnum  parliamentum ;  ^ 
but  apparently  he  does  not  think  it  worth  while  to  call  the 
gathering  of  1254 — "  ^^  important  landmark  in  the  parlia- 
mentary history  of  England,"  as  Stubbs  calls  it,  to  which 
for  the  first  time  four  elected  knights  were  summoned  to 
Westminster  from  each  shire  vice  omnium  et  singulorum 
eorundem  comitatuum — a  parliament  at  all.*  Other  writers 
begin  to  use  the  word  soon  after  the  middle  of  the  century, 
sometimes  with,  sometimes  without  a  qualifying  adjective 
or  phrase.  T.  Wykes  speaks  of  a  parliamentum  baronum  in 
1260,^  the  **  Annals  of  Waverley  "  of  a  parliamentum  mag- 
num twice  in  1265  and  once  in  1268,^  and  the  *'  Annals  of 
Winchester  "  of  a  parliamentum  omnium  magnatum  in  1270.' 
"  Parliament  "  is  vox  et  prceterea  nihil ;  there  is  nothing  to 
distinguish  it  from  other  assemblies  called  in  pursuance  of 
the  14th  article  of  Magna  Carta  requiring  the  special  and 

*  Stubbs,  Chartevs,  1900,  p.  328.  ^  ibid.,  p.  329. 

3  Ibid.,  pp.  330-1-  *  Ihid.,  pp.  Z7l 

«  Ibid.,  pp.  335-6.  '  Ibid.,  p.  337. 


EDWARD  Ps  PARLIAMENTARY  MODELS  47 

general  summons  of  tenants-in-chief  to  give  consent  to 
extraordinary  feudal  aids. 

The  vagueness  of  this  terminology  persists  in  the  pages 
of  the  chroniclers  throughout  the  greater  part  of  the  reign 
of  Edward  I ;  and  a  meeting  of  the  king  with  his  prelates 
and  barons  may  be  called  a  parliament  whether  or  not  it  also 
comprises  knights  of  the  shires  or  burgesses.  But  the  printed 
"  Rolls  of  Parliaments  "  which  begin  in  1278  seem  to  reveal 
a  different  conception  in  the  minds  of  the  clerks  and  lawyers. 
To  them  these  occasional  meetings  of  tenants-in-chief  do  not 
seem  to  be  parliaments  at  all ;  and  down  to  the  end  of  the 
century  there  is  nothing  about  their  proceedings  in  the 
"  Rolls."  There  is,  indeed,  a  complete  discrepancy  between 
the  "  Rolls  of  Parliaments  "  and  the  so-called  "  Parlia- 
mentary Writs  "  compiled  by  Sir  Francis  Palgrave  as  docu- 
mentary evidence  for  the  early  history  of  parhaments. 
Down  to  1300  the  word  "  parliament "  is  not  mentioned  in 
the  special  writs  to  prelates,  earls,  and  barons  or  in  the 
general  writs  to  the  sheriffs  and  mayors ;  they  are  summoned 
to  a  colloquium  or  a  tractatum,  but  not  to  parliament.  The 
business  of  the  gatherings  to  which  they  are  called  is  not 
recorded  in  the  *  Rolls  of  Parliaments  ";  and  the  meetings 
whose  business  is  recorded  therein  were  not  gathered  by  any 
writs  that  are  extant.  Allowance  must  no  doubt  be  made 
for  defects  in  the  records  and  in  their*  editing ;  but  when 
there  are  between  1275  and  1298  nine  assemblies  summoned 
by  **  parliamentary  "  writs,  and  fifteen  sessions  whose  busi- 
ness is  recorded  in  the  rolls,  and  when  not  one  of  the 
nine  coincides  with  one  of  the  fifteen,  the  discrepancy  is  too 
significant  to  be  explained  away  by  defective  evidence. 
The  gatherings  convoked  by  these  so-called  "  parliamentary  " 
writs  were  not  parliaments ;  and  the  meetings  called  parlia- 
ments in  the  rolls  were  not  summoned  by  the  writs  to  which 
the  name  has  since  been  given. 

The  point  may  be  enforced  by  an  examination  of  the 
proceedings  of  1290.  In  that  year  there  were  three  "  parha- 
ments "  in  the  sense  in  which  the  word  is  used  by  the  clerks 
of  chancery;    there  is   no    doubt    about    their  meaning, 


48  THE  EVOLUTION  OF  PARLIAMENT 

because  these  sessions  are  repeatedly  called  parliaments  in 
the  records  of  their  proceedings.  One  began  on  January  25 ; 
the  second  began  three  weeks  after  Easter  [i.  e.  April  23) 
and  lasted  until  July  8,  and  the  third  lasted  for  a  month 
from  Michaelmas.  For  none  of  these  sessions  have  any 
writs  been  discovered.  There  are,  however,  writs  extant 
summoning  knights  of  the  shires  to  a  fourth  assembly  on 
July  15 ;  1  but  this  is  not  a  "  parliament  "  according  to  the 
**  Rolls."  Not  merely  are  its  proceedings  not  recorded,  but 
its  existence  is  ignored.  Much  of  the  business  brought  before 
the  parliament  of  April  23  to  July  8  is  adjourned  ad  proxi- 
mum  parliamentum ;  and  the  *'  next  parliament  "  is  always 
assigned  to  Michaelmas,  even  though  writs  have  already  been 
issued  for  the  assembly  on  July  15.  The  adjourned  business 
is  taken  in  the  autumn  parliament,  and  none  of  it  at  the 
July  assembly.^ 

What,  then,  were  these  "  parliaments  "  of  the  "  Rolls," 
and  what  was  the  nature  of  their  business?  An  answer  is 
suggested  by  a  complaint  and  an  ordinance  made  in  1280.^ 
The  complaint  is  of  the  delay  and  inconvenience  caused  to 
the  folk  who  come  to  "  parliament  "  by  the  great  number  of 
petitions  which  might  be  dealt  with  by  the  chancellor  and 
justices ;  and  the  ordinance  is  that  only  petitions  that  cannot 
otherwise  be  dealt  with  are  to  come  before  the  king  and  his 
council  in  parHament.  The  business  is  legal,  these  parlia- 
ments are  "  parliaments  of  the  council,"  their  essence  is  royal 
and  judicial,  and  there  is  little  in  common  between  them  and 
the  occasional  gatherings  of  tenants-in-chief  summoned  by 
special  and  general  writs  in  pursuance  of  Magna  Carta  to 
g^ive  counsel  and  consent  to  demands  for  aids.  Their  proceed- 
ings are  naturally  entered  in  "  Rolls,"  the  characteristic 
records  of  couirts,  and  they  deal  with  *'  petitions  "  and 
"  placita."  Their  sessions  are  regular  and  not  spasmodic; 
they  do  not  depend  upon  the  king's  financial  necessities ;  and 
they  are  held  three  times  a  year.     The  three  parliaments 

1  Rep.  on  the  Digmty  of  a  Peer,  i.  54. 

8  Rot.  Pari.,  i.  15-45. 

3  Maitland,  Memoranda,  p.  Ivi. 


EDWARD   Ps  PARLIAMENTARY  MODELS  4, 

of  1290  are  followed  by  three  in  1291,  and  there  is  little 
doubt  that  this  was  the  normal  practice. 

Its  antiquity  is  obscure,  but  there  is  no  reason  to  suppose 
that  Edward  I  invented  it.  The  earhest  proceedings  recorded  *-^ 
in  the  *'  Rolls  "  do  not  give  the  impression  of  novelty;  the 
complaint  of  1280  suggests  inveterate  growth;  and  the 
multiplication  of  forms  of  original  writs  during  the  reign  of] 
Henry  III  would  lead  us  to  infer  a  rapid  increase  in  the( 
number  of  petitioners  at  Westminster,  and  the  provision  of 
means  to  expedite  their  suits.  In  1190  PhiHp  Augustus  had 
ordered  the  regents  he  left  behind  him  to  hold  three  judicial 
sessions  a  year ;  and  the  parlement  of  Paris,  hke  the  English 
"  parliament  "  of  the  "  Rolls,"  was  a  joint  session  of  the 
several  chamhres  or  courts  of  the  curia  regis,  to  which  the 
name  of  "  parlement  "  was  given  as  early  as  1239.^  When 
the  English  barons  in  1258  usurped  the  position  of  regents, 
they  arranged  for  three  **  parliaments  "  a  year,  though  their 
parliaments  were  to  consist,  not  in  joint  sessions  of  royal 

><^udges,  but  in  joint  sessions  of  baronial  councillors. 
•     The  distinction  between  judges  and  councillors  must  not,  Y 
however,  be  pressed.     Every  councillor  might  partake  ini, 
judicial   proceedings ;     and   these   "  parliaments "    of    the 
"  Rolls  "  were  joint  sessions  of  the  judges  with  the  less  pro- 

i  fessional  members  of  the  council.  Prelates,  magnates, 
proceres,  and  clerks  were  present  as  well  as  the  justices, 
though  probably  no  magnate  or  prelate  who  was  not  also  a 
councillor;  and  in  these  parliaments  the  business,  while 
mainly,  was  not  exclusively,  judicial.  In  the  "  post-pas- 
chal "  parhament  of  1290  the  statute  of  Westminster  III 
(Quia  Emptor es)  was  passed;  the  resolution  to  expel  the 
Jews  was  adopted ;  and  *'  so  far  as  in  them  lay,"  the  handful 
of  magnates  present  granted  pro  se  et  communitate  totius 
regni  an  aid  for  the  marriage  of  Edward's  sister.^  The 
need  for  further  consent  was  probably  the  reason  for  the 
summons  to  the  knights  of  the  shire  to  meet  on  July  15. 
Moreover,  there  was  no  narrow  definition  of  legal  or  judicial^ 

1  Luchaire,  Institutions  Franfaises,  p.  562. 

2  Rot.  Pari.,  i.  25a,  41a. 


^ 


50  THE  EVOLUTION  OF  PARLIAMENT 

functions;  a  pax  between  the  Cinque  Ports  and  Yarmouth 
was  recitata  et  recordata — "  registered "  in  the  French 
parhamentary  sense — in 'this  parhament,  and  so  were  similar 
agreements  between  the  bishop  of  Lincoln  and  the  university 
of  Oxford,  and  between  "  town  "  and  '*  gown  "  in  the  latter 
city.^  Even  the  taxation  of  those  who  were  not  represented 
was  not  yet  regarded  by  Edward  I,  or  by  those  whom  the 
chroniclers  describe  as  his  evil  counsellors,  as  being  outside 
the  competence  of  the  "  council  in  parliament  " ;  and  in 
the  autumn  of  1290  it  was  decided  to  levy  a  fifteenth  of  their 
moveable  goods  from  universi  regnicolce  tarn  clerici  quam 
laid,  scBculares  pariter  et  religiosi,  without  the  consent  of 
any  representative  assembly.^  Such  exactions  were,  how- 
ever, denounced  and  resisted,  for  in  the  worst  days  of 
feudalism  the  crown  had  possessed  no  power  to  levy  general 
taxation.  The  aids  and  scutages  and  even  the  danegeld 
and  carucages  levied  on  tenants-in-chief  were  in  the  nature 
of  rent  rather  than  taxes ;  they  were  part  of  the  **  considera- 
tion "  which  the  tenants  owed  to  their  landlord,  and  the 
mesne  tenants  enforced  similar  claims  on  their  vassals. 
Arbitrary  tallage  was  an  incident  of  villein  tenure,  which 
was  due  to  the  lord  whether  he  was  a  king  or  a  baron.  But  a 
general  tax  on  personal  property,  like  a  fifteenth,  levied  on 
all  irrespective  of  their  position  as  tenants  of  the  king  or 
other  lords  was  a  novelty,  indicating  the  supersession  of  the 
feudal  by  the  national  idea,  and  providing  scope  for  the 
maxim  quod  omnes  tangit  ah  omnibus  approbetur. 

This  approbation  had  been  the  normal  function  of  the 
assemblies  promised  in  Magna  Carta  and  frequently  held  in 
the  thirteenth  century.  It  was  not  the  function  of  the 
terminal  sessions  of  the  council,  whose  business  is  recorded 
in  the  early  "  Rolls  of  Parliaments  ";  ^  and  so  far  we  have 
had  two  kinds  of  meetings,  widely  differing  in  composition 
and  character,  but  both  described  as  "  pariiaments "  by 
different  authorities.     One  kind,  which  is  so  called  by  the 

1  Rot.  Pari.,  i.  16,  32b,  33.  2  stubbs,  Charters,  p    435.       ^      ' 

3  The   outcry    raised    over   the   imposition    by    the    "  parliament "   of 

Michaelmas,  1290,  may  have  helped  to  suggest  the  "  model "  parliament 

oi  1295. 


EDWARD  Ps   PARLIAMENTARY  MODELS  51 

chroniclers,  is  or  may  be  a  large  and  tumultuous  gathering 
of  tenants-in-chief  summoned  by  special  and  general  writs ; 
and  while  its  potential  size  is  reduced  by  the  practice  of 
permitting  from  two  to  four  knights  to  represent  all  the 
lesser  tenants-in-chief  of  the  shire,  it  is  increased  by  the 
admission  of  representatives  of  cities  and  boroughs  which  .^ 
are  regarded  as  collective  tenants-in-chief  of  the  crown.  ^ 
The  other  kind  of  "  parhament  " — so  called  by  the  clerks 
— is  a  smaller,  regular  meeting  of  the  king's  council,  con- 
sisting of  some  prelates  and  magnates,  most  of  the  judges, 
and  a  selection  of  clerks,  and  dealing  mainly  with  judicial 
business.  The  two  bodies  are  summoned  by  different 
methods,  meet  at  different  times,  and  discharge  different 
functions. 

But  during  the  latter  half  of  Edward  I's  reign  there  is  a  "^' 
process  of  amalgamation,  and  it  is  this  amalgamation  between     , 
"  estates  "  and_^'  parlement,"  rather  than  his  addition  of 
burgesses  to  the  meetings  of  tenants-in-chief,  that  constitutes   ,. 
Edward's  claim  to  be  the  creator  of  a  model  English  parlia-    ) 
ment.     Not  that  Edward  I  completed  the  process;  parlia-     ^ 
ment  remained  for  centuries  after  his  time  a  composite  body,     ^' 
in  which  judicial  and  representative  elements,  legal  and 
political  functions  w^ere  curiously  blended,  and  it  still  retains 
the  marks  of  its  original  heterogeneity.     The  approximation   ^<. 
made  in  the  reign  of  Edward  I  was  confined  to  summoning  -»U 
the  two  assemblies  to  the  same  place  at  the  same  time  and     '\ 
establishing  a  common  session  for  certain  purposes.  But 
inasmuch    as    this    co-operation    between    "  estates "    and 
*'  parlement  "  was  the  main  constitutional  difference  between 
England  and  the  rest  of  Western  Europe  during  the  later 
middle  ages,  the  achievement  was  great  enough,  and  requires 
greater  attention  than  it  has  yet  received.     It  was  not 
determined  by  any  large  principle  or  any  single  dominatmg 
cause,  but  by  the  cumulative  force  of  a  number  of  small 
considerations;    and  the  process  of  adoption  consisted  of 
gradual  and  almost  imperceptible  changes. 

The  principal  predisposing  cause  of  union  was  the  fact 
that  the  crown  in  council  was  always  present  at  both  kmds 


52  .    THE  EVOLUTION  OF  PARLIAMENT 

of  parliament,  in  the  one  to  lay  before  the  assembled  tenants- 
in-chief  and  burgesses  the  financial  demands  of  the  govern- 
ment and  to  explain  the  causes  of  their  necessity,  and  in 
the  other  to  hear  petitions,  move  the  courts,  and  decide 
cases  about  which  the  judges  differed  or  doubted.  It  would 
clearly  be  a  convenience  that,  when  the  council  was  gathered 
together  for  judicial  business  in  pleno  parliamento,  it  should 
at  the  same  place  and  during  the  same  period  meet  the  larger 
assembly  summoned  for  financial  and  political  considerations. 
Further,  it  must  be  remembered  that  according  to  feudal 
theory  every  tenant-in-chief  of  the  crown  was  liable  to 
suit  and  service  at  the  curia  regis  ;  and  that  not  merely  the 
joint  session  of  the  courts  in  parliament  but  each  individual 
session  ad  scaccarium,  in  banco,  or  coram  rege  was  a  session 
of  the  curia,  to  which  any  tenant-in-chief  might  be  sum- 
moned; and  therefore,  although  this  feudal  theory  was 
obsolescent  in  Edward's  reign,  the  personnel  from  which  both 
kinds  of  assemblies  were  drawn  might  be  regarded  as 
potentially  identical. 

Nor  was  this  identity  merely  potential.  The  councillors 
and  judges  who  heard  and  determined  the  pleas  and  petitions 
in  the  terminal  sessions  of  parliament  were  no  doubt  com- 
paratively few  in  number;  but  Westminster  Hall  was 
crowded  with  "  suitors,"  and  **  suitors  "  includes  not  only 
litigants  but  recognitors,  jurors,  and  inquest.  It  is  probable 
that  in  Edward's  day  a  terminal  session  in  Westminster  Hall 
was  more  largely  attended  and,  in  spite  of  the  fact  that  its 
attendants  were  not  elected,  more  representative  of  all  sorts 
and  conditions  of  men  than  any  gathering  of  the  so-called 
"  three  estates."  It  was  as  a  court  of  justice  and  not  as 
houses  of  parliament  that  the  palace  of  Westminster  was 
called  in  1302  le  plus  franc  lieu  d'Engleterre  ;  and  the  pleas 
and  petitions  heard  before  the  king  in  council  at  Michaelmas 
1290,  provide  a  more  comprehensive  picture  of  national 
life  than  the  mea^^-proceedings  of  the  Model  Parliament 
of  1295.^  There  London  petitions  for  its  mayor  and  ancient 
liberties,  and  Gloucester  against  the  frequency  and  severity 

*  Rot.  Pari.,  i.  45-63. 


EDWARD  Ps  PARLIAMENTARY  MODELS  53 

of  tallages  levied  by  the  ''  potentes  villae/'  and  asks  for  an 
inquiry  as  to  what  had  become  of  the  proceeds;  while 
Hampshire  offers  £200  to  have  its  lands  disafforested.  The 
people  of  Appleby  beg  that  they  may  have  a  water-mill  built 
out  of  the  20  marks  farm  they  pay,  and  of  er  to  raise  it 
to  £20  if  they  may  levy  market-tolls  like  Carlisle.  "  Poor 
men  "  come  from  Norfolk,  from  Lincolnshire,  and  elsewhere, 
with  petitions  against  various  forms  of  exaction.  *'  Plures 
de  populo  "  present  an  awkward  request  for  a  commission 
to  determine  when  the  courts  christian  are  to  be  bound  by 
prohibitions  and  when  they  may  proceed  notwithstanding. 
"  Multi  de  civitate  Londonii,"  complain  of  conspiracies, 
machinations,  and  partiality  in  clerks  and  ministers  of  justice. 
Canterbury  laments  the  encroachments  of  its  archbishop, 
and  London  again  accuses  the  clergy  of  extorting  more  money 
by  their  citations  and  excommunications  than  all  the  lay 
officers  put  together.  On  the  other  hand,  the  abbot  of  St. 
Mary's,  York,  begs  to  have  his  liberties  defined  "  propter 
subtilitatem  modernorum,"  while  the  Jews  complain  of 
compulsory  baptism.  No  electoral  system  then  in  existence 
could  have  provided  so  varied  a  bill  of  fare  for  a  merely 
political  parhament;  and  when  the  law  court  and  the 
"  estates  "  coalesced,  the  coalition  oweji  its  popularity  to 
the  law  and  not  to  the  politics  in  which  it  dealt.  Recourse 
to  Westminster  Palace  was  a  common  custom  before 
Edward  I  adapted  it  to  the  purposes  of  taxation  and 
representation. 

The  main  difference  between  the  two  kinds  of  assembly 
was  that  the  presence  of  petitioners  at  the  court  was  largely 
spontaneous,  unorganized,  and  irresponsible,  whereas  the 
elected  knights  and  burgesses  came  in  response  to  official 
writs  of  summons,  elected  and  empowered  to  bind  their 
constituents.  But  even  this  distinction  must  not  be  over- 
drawn. The  Hampshire  men  must  have  been  authorized 
to  offer  £200  for  its  disafforestation,  and  the  Appleby  men  to 
promise  £20  a  year  for  their  market-tolls;  and  they  must 
have  been  elected  or  selected  by  some  process  or  other  to 
jepresent  the  grievances  or  aspirations  of  their  shires  and 


54  THE  EVOLUTION  OF  PARLIAMENT 

boroughs.  But  their  appearance  was  casual  and  disjointed  ; 
and  soon  after  accredited  representatives  of  the  shires  and 
boroughs  began  to  be  summoned  for  taxing  purposes  to  the 
presence  of  the  king  in  council,  the  idea  must  have  occurred 
that'  it  would  be  a  saving  of  time,  expense,  and  travel  to 
entrust  these  representatives  with  the  petitions  which  the 
communities  desired  to  present  for  legal  redress.  The  idea 
would,  however,  be  impracticable  unless  the  representatives 
foregathered  at  court  in  tempore  parliamenti.  The  con- 
venience of  amalgamation  was  common  to  both  the  king 
and  his  people.  It  was  clearly  a  waste  of  time  for  the 
magnates,  who  happened  to  be  present  in  council  at  the 
post-paschal  session  of  1290,  tentatively  to  grant  an  aid 
quantum  in  ipsis  est,  and  then  to  summon  in  July  a 
meeting  of  elected  lesser  tenants-in-chief  to  consider  the 
same  proposal.  So,  too,  the  connexion  between  the  petitions 
for  redress  presented  to  the  council  in  parliament  and  the 
demands  for  financial  aid  presented  by  the  king  to  elected 
representatives  of  the  estates  was  natural;  a  bargain  was 
inevitably  suggested,  and  the  bargaining  could  only  be  done 
satisfactorily  if  the  people  empowered  to  grant  the  aid  were 
also  those  in  charge  of  the  petitions.  The  crown  would  be 
less  amenable  to  the  pleas  of  petitioners  who  brought  no 
financial  powers  with  them,  and  representatives  who  had  no 
successful  petitions  to  carry  home  to  their  constituents  would 
be  less  responsive  to  the  financial  pleadings  of  the  crown. 
Justitia  magnum  emolumentum  was  as  true  in  the  days  of/ 
Edward  I  as  in  those  of  Henry  I  and  Henry  H ;  and  justice 
and  finance  were  the  two  principal  ingredients  in  th^ 
parliament  compounded  by  Edward  I. 
"  Edward's  financial  necessities,  which  arose  from  his  wars 
in  France  and  Scotland  and  culminated  in  1297,  drove  him 
in  this  direction;  but  the  compounding  was  not  achieved 
in  the  Model  Parliament  of  1295.  That  assembly,  which 
met  on  November  27,  was  "  model  "  only  in  so  far  as  it 
completed  the  representative  character  of  the  body  sum- 
moned to  give  consent  to  the  lev5dng  of  taxation ;  and  even 
in  that  respect  it  may  have  been  anticipated  by  the  assembly 


EDWARD   Ps   PARLIAMENTARY  MODELS  55 

of  1275.1  It  was  not  "  model  "  in  the  sense  of  exemplifying 
that  fusion  of  "  parlement "  and  "  estates,"  of  justice  and 
finance,  which  was  the  essential  basis  of  the  EngHsh  parlia- 
ment. The  regular  terminal  sessions  had  been  concluded 
before  the  "  model  "  parliament  met;  the  only  one  in  that 
year,  of  which  any  records  have  been  preserved,  met  on 
August  15  and  sat  till  the  30th ;  and  though  various  parties 
were  referred  for  further  hearing  to  a  following  session  a  die 
Sancti  Michaelis  in  unum  mensem,  ^  there  is  no  reason  to 
suppose  that  this  Michaelmas  term  was  prolonged  beyond 
its  normal  month,  so  as  to  coalesce  with  the  session  of  the 
"  estates  "  at  the  end  of  November.  The  Model  Parliament 
of  November-December  apparently  received  no  petitions  and 
heard  no  pleas;  its  business  was  merely  to  vote  supplies; 
and  there  was  no  scope  in  it  for  those  judicial  functions 
which  made  parliament  the  highest  law  court  in  the  land 
and  gave  it  a  framework  and  organization  strong  enough 
to  save  it  from  the  shipwreck  that  overtook  mere  repre- 
sentative bodies  everywhere  else. 

It  was  in  1298,  after  the  crisis  of  1297,  that  we  have  the 
first  conclusive  evidence  of  a  simultaneous  session  of  the 
representative  and  judicial  bodies.  Edward  returned  from 
Flanders  in  March ;  at  a  terminal  session  of  the  council  held 
about  Easter,  it  was  ordained  that  the  exchequer  court 
should  be  held  at  York  on  the  morrow,  and  the  common 
pleas  on  the  octave  of  Trinity  Sunday,  that  is  to  say,  on  the 
2nd  and  9th  of  June  respectively.^  A  week  earlier,  on 
May  25,  representatives  of  the  shires,  cities,  and  boroughs 
were  also  to  meet  at  York,  and  corresponding  writs  were  sent 
to  the  prelates  and  magnates,  though  not,  it  appears,  to  the 
lower  clergy.  From  this  time  onwards  to  the  end  of  the 
reign  every  session  of  the  representative  body  coincides  with 
a  terminal  parliament  of  the  judicature,  although  of  course 
the  latter  are  more  frequent  than  the  former,  and  it  was  long 
before  the  judicial  parliamentary  sessions  were  restricted  to 
the  brief  periods  during  which  the  representatives  were  kept 

1  English  Hist.  Review,  xxv.  231-42.  , 

2  Rot.  Pari.,  i.  13^-42.  '  ^^^^''  ^-  ^43- 


together.  The  next  representative  assembly  was  summoned 
to  meet  at  London  on  March  6,  1300,  and  it  is  significant 
that  now  they  are  summoned  in  the  writs  "  ad  parhamen- 
tum  " ;  for  in  March  1300  a  "  parUament  "  in  the  sense  of 
the  "  Rolls  "  was  being  held  in  the  capital.  Knights  of  the 
shire  were  summoned  to  York  in  the  following  May;  and 
although  there  are  no  records  of  a  judicial  session  held  there 
at  that  time  in  the  "  Rolls  of  Parliaments,"  there  is  in  the 
following  year  an  interesting  reference  to  the  "  male  and 
female  "  merchants  and  burgesses  of  York  who  had  been 
brought  before  the  justices  of  common  pleas  during  their 
session  in  that  city.  For  the  well-known  parliament  at 
Lincoln  in  January  130 1,  there  are  both  writs  summoning 
representatives  and  "  Rolls  "  recording  judicial  proceedings; 
and  the  same  holds  good  for  the  Michaelmas  parliament  of 
1302,  and  the  Lent  parliament  of  1305.  No  records  of  a 
judicial  session  of  parliament  for  1306  are  printed  in  the 
"  Rolls,"  but  it  is  practically  certain  that  one  was  being 
held  in  May  when  knights  and  burgesses  were  summoned 
to  Westminster ;  ^  and  records  of  both  kinds  of  session  are 
extant  for  Edward^s  last  parliament  which  was  at  Carlisle 
in  January  1307. 

The  presence  of  these  specially  and  generally  summoned 
prelates,  magnates,  knights,  and  burgesses  at  the  time  and 
place  of  the  legal  sessions  has  its  effect  upon  the  "  Rolls  of 
Parliaments."  This  legal  record  is  no  longer  confined  to  pleas 
and  petitions ;  and  the  clerk  of  chancery  who  keeps  account 
of  these  legal  proceedings  takes  over  the  clerical  work  of 
the  "  estates."  In  1305  the  presence  of  these  intruders  into 
the  court  and  their  dismissal  is  mentioned  in  the  "  Rolls  " ; 
in  1307  the  names  of  those  who  received  a  special  writ,  and 
of  the  proxies  they  appointed,  are  entered,  and  note  is  made 
of  the  fact  that  general  writs  had  been  addressed  to  the 
sheriffs  directing  the  election  of  knights  of  the  shire  and 
burgesses.  All  are  said  to  have  been  summoned  ad  parlia- 
menium,  and  their  business  is  ad  tractandum  super  ordina- 
tione  et   stahilitate  terrce    Scotice,   necnon    et   aliis  negotiis 

1  There  is  an  adjournment  of  a  case  to  May  1306  [Rot.  Pari.,  i.  i8oa). 


EDWARD   rs   PARLIAMENTARY  MODELS  57 

dictum  regent  et  statum  regni  sui  specialiter  tangentibus. 
It  is  true  that  the  name  "  parHament  "  is  appHed  in  the 
"  Rolls  "  to  these  assemblies,  not  because  they  contain  a 
complete  representation  of  "  estates,"  but  because  they  are 
also  sessions  of  the  king's  council  in  parhament ;  and  they 
will  be  called  plena  and  generalia,  not  merely  after  all 
save  members  of  the  council  have  departed,  but  when  they 
have  not  been  summoned  at  all.  The  parliament  which 
met  on  September  15,  1305,  is  none  the  less  a  parliament  to 
the  keeper  of  the  "  Rolls  "  because  it  deals  with  only  judicial 
business  and  is  not  attended  by  any  elected  commons  or 
specially  summoned  magnates.  But  politicians  have  been 
admitted  to  parliament,  and  politics  have  been  recorded  on 
the  Rolls;  in  time  they  will  almost  expel  the  judges  and 
usurp  the  name  of  parliament;  and  the  word,  which  is 
originally  used  in  the  "  Rolls  "  of  meetings  in  which  there 
were  no  representatives,  will  be  restricted  to  those  in  which 
representatives  will  be  the  predominant  factor. 

In  Edward  Fs  reign,  however,  the  intrusion  of  the 
"  estates  "  was  only  an  episode  or  an  incident  in  the  life  of 
a  parliament,  an  episode  which  might  last  no  longer 
than  a  few  days,  and  rarely  extended  over  three  weeks. 
On  February  28,  1305,  a  parliament  was  begun ;  on  March  21 
not  only  the  knights,  burgesses,  and  clergy,  but  also  the 
prelates  and  magnates  who  were  not  of  the  king's  council 
were  dismissed.^  But  the  parliament  still  continued:  on 
April  5,  in  the  presence  of  bishops  and  other  prelates,  earls, 
barons,  justices,  and  other  noble  clerical  and  lay  councillors, 
"  generali  parliament o  tunc  exist ente  ibidem,"  letters  from 
the  pope  were  presented  to  Edward;  and  on  April  6  the 
king  in  pleno  parliamento  forbade  his  chancellor  to  issue 
certain  letters  of  protection.^  This  practice  continued  into 
the  reign  of  Edward  III.  A  parliament  began  on  Monday, 
March  17,  1332;  on  the  following  Saturday  the  knights, 
citizens,  and  burgesses  were  dismissed,  but  the  "  prelates, 
earls,  barons,  and  gentlemen  of  the  king's  council "  were 

1  Cf.  Maitland,  Memoranda,  p.  xxxv. 

2  Rot.  Pari,  i.  172,  177-9- 


58  THE  EVOLUTION  OF  PARLIAMENT 

retained,  and  the  proceedings  en  pleyn  parlement  continued 
in  the  following  week.^  It  is  clear  that  the  prelates, 
magnates,  knights,  and  burgesses  who  obeyed  the  writs  of 
summons  to  parliament  did  not  constitute  a  parliament  or 
even  make  a  parliament  plenum  or  generate.  They  were 
summoned  to  something  that  was  a  parliament  apart  from 
their  presence.  The  essential  presence  is  that  of  the 
council;  nothing  was  called  a  parliament  from  which  the 
council  was  absent;  parliament  is,  in  fact,  a  parliament 
of  the  council,  and  a  plenum  or  generate  parliament  was 
simply  a  general  and  full  (or  public)  session  of  the  council. 
Fleta  knows  nothing  of  elected  representatives ;  they  are  an 
accretion  not  yet  recognized  as  indispensable  to  the  com- 
position of  a  parliament,  a  sort  of  slip-carriage  or  series  of 
slip-carriages  which  may  be  detached  at  any  point  in  the 
journey  of  the  parliamentary  train.  The  essential  factor  is 
the  engine  of  the  council,  which  supplies  the  motive  force 
and  travels  all  the  way. 

The  organization  and  business  of  parliament  were  as 
composite  as  its  personnel,  and  the  contents  of  the  '*  Rolls  " 
reflect  the  varied  nature  of  its  proceedings.  Its  machinery 
was,  however,  purely  legal  in  origin,  and  down  to  this  day 
the  technical  details  connected  with  the  issue  of  parliamen- 
tary writs  and  other  business  are  suggestive  of  those 
employed  in  the  law  courts.  Chancery  supplied  the  presid- 
ing officer  and  the  clerks  of  parliament,  issued  the  writs  of 
summons  and  examined  the  returns,  provided  the  methods 
of  proceeding  by  petition  and  bill,  and  kept  the  records; 
and  at  times  parliament  has  the  appearance  of  being  nothing 
but  chancery  turned  to  political  purposes.  It  was  natural 
that  the  inorganic  "  estates  "  should  fall  under  the  manage- 
ment of  the  organic  court  of  law  with  its  regular  sessions, 
coherent  personnel,  and  expert  clerks,  when  once  the  con- 
nexion between  the  two  assemblies  had  been  established; 
for  the  **  estates  "  had  developed  no  organization  and  no 
records  of  their  own  before  they  came  into  contact  with  the 
organized  terminal  sessions  of  the  council;   and  it  was  not 

^  Rot.  Pari.,  ii,  64-6.  \ 


EDWARD   Ps   PARLIAMENTARY  MODELS  59 

until  the  later  development  of  the  "house"  of  commons 
that  we  discover  in  the  Speaker  a  parhamentary  official  who 
has  no  essential  connexion  with  the  law. 

But  there  were  no  "  houses  "  in  Edward  I's  reign,  and  the 
earliest  trace  of  the  organization  of  "  estates  "  apparently 
consists  of  the  clerks  of  chancery  who  seem  to  have  been 
allocated  to  the  different  groups  of  representatives  to  assist 
them  in  drafting  their  replies  and  perhaps  to  keep  some 
record  of  their  attendance,  upon  which  the  writs  de  expensis 
were  issued  when  they  were  dismissed.  Even  this  is  a 
development  of  the  reign  of  Edward  III,  and  while  separate 
deliberation  by  different  groups  may  perhaps  be  inferred 
for  that  of  Edward  I,  there  is  no  evidence  of  it  in  the 
"  Rolls  of  Parliament."  All  that  we  can  say  is  that  the 
"  estates "  were  called  into  the  presence  of  the  council, 
presented  petitions  as  individuals  rather  than  as  a  corporate 
body  or  bodies,  heard  a  statement  of  such  of  the  king's 
intentions  as  he  thought  fit  to  reveal,  and  gave  assent, 
perhaps  by  silence,  to  his  demands  for  money.  These 
brief  and  one-sided  interviews  between  the  council  and 
"  estates  "  suggested  and  required  little  organization.  They 
did  not  sit  together,  for  the  commons,  at  least,  stood  in  the 
presence  of  the  king  and  council,  and  the  attitude  of  Edward  I 
was  somewhat  patriarchal.  They  probably  took  a  less  active 
part  in  parliament  than  the  audience  does  in  a  public  meeting 
of  to-day;  the  council  sat  on  the  platform,  and  the  business 
was  cut-and-dried.  The  commons,  at  least,  were  summoned 
not  to  decide,  but  to  consent  to  decisions;  and  the  object 
of  their  presence  was  not  to  tie  the  hands  of  the  council, 
but  to  unloose  the  pockets  of  their  constituents. 

This  was  the  pohtical  business  of  a  parliament ;  but  its  first 
purpose  was  judicial,  and  before  the  estates  assembled, 
proclamation  was  always  made  in  Westminster  Hall  and 
elsewhere  that  all  who  had  petitions  to  present  should  present 
them  by  a  certain  date.  Individual  prelates,  barons,  knights, 
and  burgesses  may  have  attended  to  support  the  particular 
petitions  in  which  they  were  interested;  but  there  were  few 
petitions  to  Edward  Ts  parliaments  of  more  than  l^cal  or 


6o  THE  EVOLUTION  OF  PARLIAMENT 

personal  import ;  and  it  is  unlikely  that  the  audience  for  the 
hearing  of  others  was  large.  Apart  from  the  grant  of  money, 
and  the  discussion  thereof,  in  which  the  commons  took  but 
a  humble  part  at  first,  the  **  estates  "  had  little  to  do  in 
parliament ;  and  it  is  small  wonder  that  they  were  commonly 
dismissed  after  a  few  days  or  a  week  or  two.  Their  import- 
ance as  a  deliberative  assembly  grew  slowly  with  their  gradual 
realization  of  the  fact  that  their  individual  petitions,  arising 
spontaneously  from  different  localities,  dealt  with  grievances 
common  to  all  and  might  well  be  fused  into  common  peti- 
tions. When  that  took  place,  parliament  became  a  political 
arena  rather  than  a  court  of  law;  for,  while  individual 
grievances  are  matters  of  law,  national  grievances  are  matters 
of  politics.  The  one  requires  merely  judicial  action,  the 
other  calls  for  legislation.  But  this  was  a  slow  develop- 
ment of  the  fourteenth  century,  dependent  upon  the  growth 
of  a  common  consciousness  among  the  locally-minded 
delegates  or  petitioners  whom  Edward  I  dragged  or  invited 
into  the  presence  of  his  council  in  parliament. 


CHAPTER  IV 

THE   MYTH   OF  THE  THREE   ESTATES 

While  the  high  court  of  parliament  was  the  correct 
and  official  description  of  the  two  houses  in  the  sixteenth 
and  seventeenth  centuries,  the  "  three  estates  "  was  the 
more  popular  and  inaccurate  designation  applied  to  them 
in  the  eighteenth  and  nineteenth;  and  the  phrase  has 
become  so  deeply  embedded  in  historical  terminology  that 
it  is  accepted  as  synonymous  with  parliament  without 
any  critical  examination  of  its  real  relevance.  There  has, 
it  is  true,  been  some  divergence  of  opinion  as  to  whether 
the  three  estates  were  king,  lords,  and  commons,  or  lords  - 
spiritual,  lords  temporal,  and  commons;  but  the  former/ 
definition  of  the  term,  which  was  common  in  eighteenth- 
century  parliamentary  oratory,  has  been  frightened  even 
out  of  school-books  by  the  contemptuous  ridicule  of  nine- 
teenth-century historians.  The  error,  if  an  error  at  all,  is, 
we  shall  see,  not  quite  so  flagrant  as  it  has  been  represented ; 
and  in  any  case,  it  is  only  a  detail  compared  with  the  fact 
that  the  more  we  realize  the  importance  and  the  permanence 
^,  of  parliament  as  a  high  court,  the  less  ready  shall  we  be 
Uo  accept  the  three  estates  as  a  complete  or  even  a 
';  plausible  indication  of  its  essential  character  and  consti- 
tution. Judicature  is  not  a  function  of  estates ;  and  where 
three  estates  have  really  existed,  as  in  France,  they  have 
had  little  or  no  connexion  with  parlements.  Yet  as  late 
as  the  reign  of  Henry  VH,  half  the  time  of  parhament 
was  occupied  with  purely  judicial  functions ;  ^  they  were 
discharged  by  parliament   centuries  afterwards  in  passmg 

1  The  reason  still  given  in  1485  for  the  appointment  of  receivers  and 
triers  of  petitions  is  "  ut  justitia  conqueri  volentibus  possit  celenus  adhiben 
{Rot.  Pari.,  vi.  267). 

61 


62  THE  EVOLUTION  OF  PARLIAMENT 

acts  of  attainder  and  indemnity,  and  are  still  performed 
by  the  house  of  lords,  which  exercises  them  solely  because 
it  is  a  branch  of  the  high  court  of  parliament. 
,/  Parhament,  however,  is  obviously  more  than  a  high 
coilrt-j-it-is-an-asseniblyof  national  representatives,  and 
an  inquiry  into  the  principles  upon  which  that  system 
of  representation  has  been  based  is  a  matter  of  some 
importance.  The  prevalent  theory  seems  to  be  that  during 
the  formative  period  of  parliament  the  English  nation  con- 
sisted of  three  "  estates  "  or  orders,  and  that  Edward  I 
carefully  and  deliberately  organized  parliaments  in  such  a 
way  as  to  represent  these  estates.  They  were,  we  are 
'  told,  firstly  the  church,  secondly J:he  nobility,  and  thirdly 
the  coinmons ;  the  king  could  not  be  an  estate  of  the  T*ealm 
because  h?"was  an  individual  and  not  a  class.  The  first 
estate  was  accordingly  represented  by  the  spiritual  lords 
in  parliament,  namely,  the  bishops,  some  abbots,  and  one 
or  two  priors;  the  second  estate  by  the  earls  (and  subse- 
quently the  dukes,  marquises,  and  viscounts  as  well)  and 
barons;  and  the  third  estate  by  the  knights  elected  for 
the  shires  and  the  citizens  and  burgesses  for  the  cities  and 
boroughs. 

Two  general  criticisms  of  this  theory  at  once  occur.  In 
the  first  place,  we  have  been  taught  by  Maitland  and  others 
that  there  is  little  about  status  in  the  English  law  of 
the  thirteenth  century,  but  a  great  deal  about  tenure.^ 
The  most  important  body  in  the  community  consisted  of 
the  military  tenants-in-chief  of  the  crown ;  but  this  tenurial 
distinction  did  not  correspond  with  any  social  or  class 
division.  A  mihtary  tenant-in-chief  was,  no  doubt,  often  a 
magnate,  but  he  might  be  a  poor  man  also ;  and  as  early  as 
the  first  quarter  of  the  twelfth  century  we  find  men  holding 
by  mihtary  tenure-in-chief  fiefs  so  exiguous  that  the  knightly 
service  can  only  be  expressed  in  vulgar  fractions,  such  as 
one  twenty-fourth  of  the  service  of  a  single  fully -armed 
knight. 2  On  the  other  hand,  a  sub-tenai>t  may  be  a  rich 
and  powerful  person,  holding  many  fief:,  of  many  lords. 

^  Maitland,  Collected  Papers,  i.  206. 

2  Pollock  and  Maitland,  Hist,  of  English  Law,  i.  230-52. 


THE  MYTH  OF  THE   THREE  ESTATES  63 

A  socage  tenant,  again,  may  be  rich  or  poor,  and  so  may  a 
tenant  by  grand  or  petty  serjeanty.  The  same  individual, 
moreover,  may  hold  at  once  different  lands  by  all  these 
different  forms  of  tenure;  and  all  forms  of  tenure  shade 
off  into  one  another  by  almost  imperceptible  degrees.  The 
possession  of  the  smallest  estate  in  chief  of  the  crown  will, 
indeed,  subject  the  tenant  to  certain  liabilities;  the  king 
will  claim  wardship  over  his  heir,  the  right  to  dispose  of 
his  heiress  in  marriage,  and  custody  of  his  lands  during  a 
minority ;  but  assuredly  his  tenure-in-chief  will  not  entitle 
him  to  sit  in  parliaments  in  person  or  to  vote  for  the  earls 
or  barons  who  are  summoned  by  special  writ.  We  may 
think  him  a  member  of  the  second  estate,  but  if  he  is  repre- 
sented in  parliaments  at  all,  it  will  be  by  a  member  of  the 
third.  The  most  striking  feature,  in  fact,  of  Enghsh  society 
in  the  early  middle  ages  is  the  confusion  of  classes;  but 
there  can  be  no  system  of  estates  where  nothing  is  based  upon 
status;  for  status  is  the  Latin  for  estate;  and  Edward  I 
was  the  last  man  to  have  thought  of  organizing  a  parliament 
upon  a  theory  which  had  no  foundation  in  law. 

Secondly,  neither  Edward  nor  any  one  else  in  the  England 
of  the  thirteenth  and  fourteenth  centuries  seems  to  have 
had  any  clear  conception  of  what  was  meant  by  an  "  estate." 
The  word  has  not  been  traced  back  beyond  1307,  when 
the  famous  letter  of  the  barons  to  the  pope  speaks  of  I'estat 
du  roialme  and  tons  ces  estats  de  prelacie  ;  ^  and  its  use  in 
the  fourteenth  century  is  almost  as  vague  as  it  is  to-day, 
when  we  can  speak  of  a  man's  estate,  meaning  either  his 
property  or  his  manhood.  Indeed,  the  word  was  less  deter- 
minate then  than  now,  for  we  have  differentiated  "  status," 
estate,  and  state,  which  were  all  the  same  in  origin.  No 
one,  it  is  true,  talks  about  the  "  state  "  in  the  middle  ages; 
for  that  is  a  modem  conception.  But  it  might  help  to 
clarify  our  ideas  if,  instead  of  speaking  of  the  three  estates 
of  the  realm,  we  talked  of  the  three  states  of  the  realm,  and 
remembered  that  "  state  "  is  the  Enghsh  form  of  "  status 
When  politicians  and  publicists  talked  in  the  sixteenth  and 

1  Rot.  Pari.,  i.  219;   the  Latin  record  which  follows  the  French  petition 
also  has  status  regni,  which  may  be  I'estat  or  les  estats. 


64  THE  EVOLUTION  OF  PARLIAMENT     ' 

subsequent  centuries  about  preserving  the  state,  they  often 
meant  the  "  status  quo."  The  state  was  something  estab- 
Hshed  by  law  or  by  custom,  something  that  could  not  or 
should  not  be  changed.  Any  fixed  order  or  species  might 
be  a  state,  and  the  word  implied  something  fundamental 
by  the  law  of  God  or  of  nature.  It  was  characteristic  of 
the  ages  in  which  men  had  some  notion  of  social  statics 
but  none  of  social  dynamics,  some  desire  for  order  but  no 
conception  of  progress. 

That  there  was  something  natural,  if  not  also  divine, 
in  the  separation  of  mankind  into  three  classes  seemed 
as  clear  to  medieval  philosophers  as  it  did  to  nineteenth- 
century  railway  companies.  The  idea  was  as  old  as  Plato ;  ^ 
parliament  itself  in  140 1  speaks  of  a  trinity  of  estates ;  2 
and  Wy cliff e  writes  of  the  **  state  of  priests,  state  of  knights, 
and  state  of  commons."  ^  This  corresponds  to  a  common 
philosophical  distinction  of  priestly,  military,  and  plebeian 
orders,  though  another  division  was  into  fighters,  council- 
lors, and  labourers.  There  is  a  vague  similarity  between 
these  theoretical  classifications  and  the  division  into  church, 
lords,  and  commons,  of  which  parliaments  embodied  a 
rough  representation/  But  it  is  a  long  step  from  this 
analogy  to  the  thebry  that  parliament  was  organized 
upon  the  basis  of  three  estates;  and  in  practice  there  was 
little  in  common  between  the  two.  The  first  estate  was 
the  church ;  but  in  parliaments,  after  the  reign  of  Edward  II 
at  any  rate,  the  church  is  represented  only  by  the  bishops, 
some  abbots,  and  one  or  two  priors;  and  they  are  sum- 
moned, or  rather,  are  liable  to  summons,  not  because  they 
represent  the  church,  but  because  "they  hold  land  per 
haroniam,  by  military  tenure-in-chief  of  the  crown.^    They 

1  Republic,  n.  370  sqq.  2  j^Qf^  Pari.,  iii.  459&. 

3  English,  Works,  ed.  Arnold,  iii,  184.  Cf.  also  Hallam,  Middle  Ages, 
iii.  105-6,  and  Stubbs,  Const.  Hist.,  ii.  172  n. 

*  See  Pike,  Const.  Hist,  of  the  House  of  Lords,  pp.  155-6,  219.  It  is 
inaccurate  to  say  that  they  were  summoned  because  they  held  baronies, 
for  many  who  held  baronies  were  not  summoned  at  all.  They  were  sum- 
moned because  the  king  desired  their  counsel ;  and  their  baronies  gave  him 
a  lien  on  their  suit  and  service  at  his  court.  The  crown  was  not  prepared 
to  abandon  the  bishops  to  the  papacy,  and  they  were  expected  to  be  royal, 
as  well  as  papal,  courtiers. 


THE  MYTH  OF  THE   THREE  ESTATES 


65 


are,  in  fact,  barons  as  well  as  prelates,  and  Henry  II  had 
laid  it  down  in  the  Constitutions  of  Clarendon  that  they 
were  liable  to  suit  and  service,  like  other  barons,  in  the 
king's  court ;  and  Edward  Ill's  answer  to  the  prelates  who 
complained  of  taxation  in  1341  unmistakeably  implies  that 
they  were  summoned  to  parliaments  because  they  held  by 
barony  > 

This  view  has  been  disputed,  and  a  spiritual  right  to  be 
present  in  parliament  has  been  asserted,  mainly  on  the 
ground  that  during  the  vacancy  of  episcopal  sees,  the 
guardian  of  the  spiritualties  who  did  not  hold  per  haroniam 
received  a  special  writ  of  summons  like  a  bishop.  But  he 
received  this  summons  because  of  the  prcBmunientes  clause 
it  contained,  requiring  him,  as  the  only  person  capable  of 
so  doing,  to  cause  proctors  to  be  elected  for  the  clergy  of 
the  diocese  of  which  he  had  temporary  charge,  and  not  for 
the  sake  of  securing  his  personal  presence  in  parliament. 
Certainly  no  abbot  ever  sat  by  a  spiritual  title,  and  the 
ground  upon  which  many  of  them  sought  to  evade  the  duty 
of  attendance,  was  always  an  allegation  that  they  held  no 
land  per  haroniam  and  therefore  were  not  liable  to  a  summons. 
The  force  that  brought  spiritual  and  temporal  lords  together 
into  one  house  of  lords  was  clearly  not  their  common 
membership  of  the  same  estate,  for  ex  hypothesi  they 
belonged  to  two  sharply  distinguished  orders,  but  their 
common  receipt  of  a  special  writ  of  summons  based  on 
their  common  tenure-in-chief  from  the  crown^y--^'Comme 
ercevesques  et  evesques,"  plead  the  prelates  themselves  in 
parliament  in  1352,  "  tiegnent  lour  temporaltes  du  roi  en 
chef  et  par  tant  sont  pieres  de  la  terre  comme  sont  autres 
countes  et  barons."  2  if  the  house  of  lords  is  an  estate  at 
all,  it  is  an  artificial  estate  created  by  the  action  of  the 
crown  out  of  heterogeneous  elements  gathered  from  all  the 
three  normal  estates  of  theory— bishops  and  abbots  from 

1  Rot.  Pari.  ii.  130.  The  prelates  ''  qui  tiegnent  du  roi  par  baronie  et 
deyvent  venir  au  parlement  par  somonse  "  are  told  that  they  must  pay  a 
ninth;  whUe  clergy  "qui  ne  tiegnent  rien  par  baronie  ne  ne  sont  pas 
acoustumes  d'estre  somons  au  parlement"  need  o^ly  pay  a  tentn. 

2  Ihid.,  ii.  245.  It  has  not,  I  think,  been  established  that  a  guardian 
of  spiritualties  ever  sat  in  parliament  on  that  ground. 

F 


M 
'J 


66  THE  EVOLUTION  OF  PARLIAMENT 

the  first,  earls  and  barons  from  the  second,  and  councillors, 
judges,  and  secretaries  from  the  third. 

Nor  was  the  second  estate  more  satisfactorily  represented 
in  the  house  of  lords  than  the  first.  The  theory  of  three 
estates  would  seem  to  imply  that  each  member  of  an  estate 
is  entitled  either  to  be  present  at  the  estates-general  in 
person  or  to  vote  for  the  election  of  a  representative;  at 
any  rate,  that  was  the  interpretation  adopted  at  the  great 
assembly  of  the  estates-general  of  France  in  1789.  But 
no  one — save  its  ex-officio  members,  the  chancellor,  the 
treasurer,  and  so  forth — ^has  ever  sat  in  the  house  of  lords 
except  in  response  to  a  special  writ  of  summons;  and  the 
vast  majority  of  the  military  tenants-in-chief  received  no 
,  special  writ,  and  were  represented  in  the  house  of  commons. 
I  If  there  was  ever  a  noble  estate  in  England,  it  was 
/T  unceremoniously  cut  by  English  monarchs  into  two  unequal 
sections,  the  smaller  of  which  was  called  to  the  house  of 
lords,  while  the  larger  was  relegated,  in  the  persons  of  the 
knights  of  the  shire,  to  the  third  estate  in  the  house  of 
commons.  For  the  knights  of  the  shire  were  barons,  the 
barones  minores  who,  according  to  Magna  Carta,  were  to  be 
summoned  to  give  their  advice  by  general  writs  addressed 
to  the  sheriff  and  not  by  special  writ  addressed  to  the 
individual  baron  .^4  The  house  of  lords  is  not  an  estate  of  | 
the  realm ;  if  it  represents  estates  at  all  it  is  a  royally  | 
compounded  mixture  of  fragments  of  estates. 
K  Least  of  all  is  the  house  of  commons  a  third  **  estate." 
It  is  no  mere  assembly  of  bourgeois  like  the  old  tiers  Hat  in 
France.  Its  most  important  and  turbulent  element  in  the 
middle  ages  consists  of  the  knights  of  the  shire,  barones 
minores,  milites,  or  chivalers}  as  they  are  called,  who  were 
tenants-in-chief  of  the  crown,  who  often  called  themselves 
**  nobles,"  ^  and  who  belonged  by  the  theory  of  estates  to 

1  We  should  be  inclined  to  regard  miles  and  chivalev  as  synonymous, 
were  it  not  that  a  knight  of  the  shire  is  sometimes  described  as  miles  et 
chivalev  in  the  "  Official  Return  of  Members  of  Parliament."  Nor  must  we 
identify  milites  with  barones  minofes,  since  even  an  earl  was  often 
a  knight  as  well  (cf.  Magna  Carta  Essays,  Royal  Hist.  Soc,  pp.  46-77,  100). 

8  The  "  nobility  "  in  England  down  to  the  sixteenth  century  included, 
as  it  did  in  France,  the  petite  noblesse. 


THE   MYTH  OF   THE   THREE  ESTATES  67 

t^e^econd  and.not  to. the  third.     It  was  their  combination 

with  the  city  and  borough  members  that  gave  the  house 

of  commons  its  singular  strength  in  the  middle  ages  and 

made  it  unique  among  representative  institutions.     But  it 

was  no  estate  of  the  realm;    it  was  a  con  centra  finr>  nf  all|\- 

the  communities  .of  England,^^ire^,_cities^nd  boroughs ;  llH 

and  it  consisted  no  more  than  they  didTof  a^single  class! 

I  If  it  represented  one  estate  more  than  another,  it  repre- 

^^sented  the  second  rather  than  the  third;    for  the  knights 

J  of  the  shire  were  often  nominated  by  its  magnates,  and  the 

isame  magnates  sometimes  controlled  the  elections  for  the 

jboroughs  on  their  domains.     Lastly,  in  a  system  of  three 

I  estates  there  is  no  natural  or  logical  place  for  the  large 

(official  and  legal  element  which  we  find  throughout  in  the 

high  court  of  parliament. 

These  facts,  or  some  of  them,  have  been  generally  recog- 
nized by  historians,  who  nevertheless  accept  the  funda- 
mental truth  of  the  theory  of  three  estates ;  and  the  incon- 
sistency between  that  theory  and  the  facts  is  explained  by 
the  contention  that  the  English  have  never  been  logical, 
and  that  parliaments  represented  only  a  rough  approxima- 
tion to  the  orthodox  theory.  If  a  clerk  of  a  fourteenth- 
century  parliament  writes  of  the  judges  or  merchants  as 
being  **  estates,"  or  refers  in  a  hazy  way  to  half  a  dozen 
or  more  "  estates,"  the  reference  is  regarded  as  a  slip  of 
the  pen,  a  loose  use  of  the  phrase,  or  a  mental  aberration.^ 
The  difficulty  is,  however,  to  discover  the  evidence  for  the 
norm,  from  which  these  exceptions  depart.  Exceptions  no 
doubt  will  prove  a  rule,  but  only  if  they  can  be  proved  to 
be  exceptions ;  we  must  satisfy  ourselves  that  the  exception 
is  not  the  rule,  and  so  far  from  being  able  to  show 
that  it  was  the  custom  to  regard  a  parliament  in  the  four- 
teenth century  as  an  assembly  of  three  estates  consisting 
respectively  of  lords  spiritual,  lords  temporal,  and  com- 
mons, we  cannot,  I  think,  adduce  a  single  instance  of  such 

1  Cf.  Maitland,  Memoranda,  p.  Ixxxiii.  We  are  apt  to  think  that 
"  whatever  upon  our  record  makes  against  this  belief  should  be  explained 
away  as  irregular  or  anomalous." 


68  THE  EVOLUTION  OF  PARLIAMENT 

a    description    until    towards    the    close    of   the    reign   of 
Henry  V. 

Certainly,  the  only  known  description  of  parliaments  in 
the  fourteenth  century,  the  Modus  Tenendi  Parli amentum} 
knows  nothing  of  three  estates  or,  indeed,  of  any  estates 
at  all.  This  tract  has  been  commonly  treated  as  a  fanciful 
sketch  of  no  authority  for  somewhat  inadequate  reasons, 
unless  its  disagreement  with  orthodox  views  be  regarded 
as  a  sufficient  ground  for  neglect.  It  is  true  that  its 
opening  statement,  professing  to  give  an  account  of  the 
method  of  holding  parliaments  in  Anglo-Saxon  times,  does 
not  commend  it  to  historical  students;  but  the  fact  that 
it  is  of  no  value  for  i^jglo-Saxon  history  does  not  disprove 
its  claim  to  be  consioered  as  of  some  authority  on  the 
parliaments  of  the  century  in  which  it  was  written,  any 
more  than  chroniclers  who  begin  with  the  Creation  are  to 
be  ignored  when  they  come  down  to  contemporary  history. 
Its  composition  has  been  assigned  to  the  opening  years  of 
Edward  Ill's  reign,  m.amly  because  it  mentions  no  viscounts, 
marquises,  or  dukes,  but  only  earls  and  barons  among  the 
magnates,  and  the  first  English  duke  was  created  in  the 
person  of  the  Black  Prince  in  1337.  At  least  three  of 
the  extant  MSS.  date  from  the  fourteenth  century ;  and  it 
seems  to  have  been  regarded  early  in  the  fifteenth  century 
as  an  authoritative  rather  than  a  fanciful  description. 
At  any  rate,  a  revised  version  of  it  was  sent  over  to  Ireland 
in  1418  by  the  privy  council  to  inform  the  lord  deputy  of 
the  method  in  which  parliaments  should  be  held  in  Dublin ; 
in  1510  the  clerK  of  the  parliaments  thought  it  worth  while 
to  transcribe  the  treatise  and  prefix  it  to  the  Journals  he 
had  to  keep;  and  ajnother  copy  was  apparently  handed 
from  clerk  to  clerk  of  the  house  of  commons. 

1  The  best  edition  of  the  Modus  is  that  by  Hardy  (London,  1846),  from 
whose  text  Stubbs  printed  it  at  the  end  of  his  Select  Charters.  The  Irish 
version  of  141 8  was  first  printed  in  191 1  in  R.  Steele's  Bibliography  of 
Proclamations  (Oxford:  Clarendon  Press),  i.  clxxxviii-cxci.  Numerous 
MS.  copies  of  the  English  version  were  made,  and  in  the  first  half  of  the 
seventeenth  century  it  was  a  favourite  text  for  parliamentary  lawyers  like 
Hakewill  and  Elsynge  to  edit.  Some  attention  has  been  given  to  it  by 
members  of  my  seminar,  and  a  preliminary  survey  of  forty -seven  MSS.  extant 
in  the  British  Museum  was  published  in  the  English  Hist,  Review,  April 
1 91 9,  pp.  209-25. 


THE   MYTH  OF  THE   THREE  ESTATES  69 

Now,  the  Modus,  while  saying  nothing  about  three 
estates,  says  a  good  deal  about  six  "  gradus  "  of  parlia- 
ment ;  and  these  "  grades  "  or  orders  are  the  king,,  the 
prelates,  th^.,^ecclesiastical  proctors,  the  lords  temporal, 
the  knights,  and  the' commons/"  The  Irish  version  of  1418 
contaftns"-some  important  modifications  of  the  earlier  English 
version;  but  there  are  still  six  grades  of  parliament,  each 
with  its  own  clerk,  each  deliberating  apart,  and  reporting 
its  answers  separately  to  parliament.  It  would  in  any 
case  be  somewhat  arbitrary  to  ignore  this  evidence,  and 
such  neglect  becomes  impossible  when  the  general  con- 
clusion to  be  derived  from  the  Modiis  as  regards  the  three 
estates  is  confirmed  by  the  "  Rolls  of  Parliament "  them- 
selves. The  Modus  gives  too  few€lather  than  too  many 
"grades"  of  parliament;  for  the  judges  are  sometimes 
described  in  the  "  Rolls  "  as  an  estate,  the  "  chivalers  " 
as  another,  and  the  merchants  were  summoned  by  writ 
as  a  separate  class  in  1339  and  1340.  This  latter  practice 
was,  however,  prohibited,  on  the  petition  of  the  commons, 
in  1362  and  1371;  and  the  judges  are  seldom  described 
as  an  estate.  That  the  "  Rolls  "  should  describe  them  as 
such  at  all,  and  that  they  should  speak  of  prelates,  lords 
temporal,  knights,  judges,  et  torn  aiitres  estats}  being 
charged  to  deliberate  one  by  one,  is  suihcient  evidence  that 
these  estates  themselves,  or  the  clerk  of  the  parliaments 
who  recorded  their  proceedings,  knew  nothing  of  any  sacro- 
sanct trinity  of  estates.  The  most  formal  and  authoritative 
definition  of  "  a  parlement  somond  of  all  the  states  of  the 
reaume  "  is  given  by  Chief-justice  ThimiHg  on  the  solemn 
occasion  of  Richard  II's  abdication;  and  he  enumerates 
them  as  :  (i)  archbishops  and  bishops;  (2)  abbots,  priors, 
and  ''  all  other  men  of  Holy  Church,  Seculars  and  regulars" ; 
(3)  dukes  and  earls;  (4)  barons  and  bannerets;  (5)  bachelors 
and  commons,  who  are  divided  into  two  sections,  those 
"  by  south  "  and  those  "  by  north."  He  also  refers  to 
''  the  state  of  kyng,"  and,  besides  the  "  §tates,"  to  "  all 
the  people  that  was  ther  gadyrd  by  cause  of  the  sommons 

1  Rot.  Pari.,  ii.  278,  iii.  100. 


70  THE  EVOLUTION  OF  PARLIAMENT 

forsayd,"  by  whom  Richard's  renunciation  and  cession 
''ware  pleinelich  and  freilich  accepted  and  fullich  agreed."  ^ 
Even  when  we  do  come,  in  the  first  year  of  the  fifteenth 
century,  across  an  allusion  in  the  "  Rolls  "  to  three  estates, 
they  are  not  the  three  of  constitutional  orthodoxy ;  and  it 
is  as  a  trinity  of  king,  lords,  and  commons  that  the  last- 
named  describe  the  three' estates  in  their  address  to  Henry  IV 
in  140 1. 2  If  the  commons  had  enjoyed  the  advantage  of 
reading  oar  modern  constitutional  histories,  they  might  have 
avoided  this  "  error,"  into  which  Burghley  fell  in  1585  ^  and 
Charles  James  Fox  and  thousands  of  others  in  the  eighteenth 
century.* 

It  is  in  1421  that  we  get  the  first  official  reference  to 
parliament  as  consisting  of  tres  status,  videlicet,  prelatos  et 
clerum,  nobiles  et  magnates,  necnon  communitates  dicti 
regni  ;  ^  and  the  circumstances  of  this  reference  suggest  an 
interesting  explanation  of  the  introduction  of  the  phrase 
into  English  parliamentary  usage.  The  Peace  of  Troyes 
had  been  concluded  between  Henry  V  and  Charles  VI  of 
France,  and  every  formality  was  to  be  observed  which 
might  render  it  and  the  union  of  the  two  crowns  binding. 
The  peace  was  accordingly  to  be  sworn  to  by  the  three 
estates  of  the  two  realms.  It  had  been  signed  in  France, 
where  there  really  was  a  system  of  three  estates,  and  the  ad- 
vantages of  uniformity  suggested  the  employment  of  identical 
phraseology  when  the  treaty  was  sent  over  to  England 
for  confirmation.  From  this  time  the  phrase  comes  slowly 
and  doubtingly  into  English  official  and  popular  use.^ 
The  process  was  eased  by  the  contact  of  the  English 
government  with  systems  of  three  estates  in  its  French 

*  Rot.  Pari.,  iii.  424;  Hughes,  Chaucer's  England,  pp.  293-4. 

2  Ibid.,  iii.  4596;  Stubbs.  ii.  172  n. 

3  D'Ewes,  Journals,  p.  350;  Bishop  Aylmer  has  the  same  definition 
{An  Harborowe  for  Faithfull  Subjects,  1559,  H.  iii.);  and  so  has  Bishop 
Gardiner  (Foxe,  Acts  and  Mon.,  vi.  51). 

*  Lecky,  Hist,  of  England,  1892,  iii.  388  n.;  B.  Whitelocke  {Notes  on  the 
King's  Writ,  ed.  1766,  ii.  43)  takes  the  same  view. 

^  Rot.  Pari.,  iv.  135,  v.  102-3.  Even  this  adds  "clerum"  to  the 
conventional  "  lords  spiritual." 

^  Ordinances  of  the  Privy  Council,  ed.  Nicolas,  v.  297,  vi.  71 ;  Rot.  Pari., 
iv.  420,  V,  128,  vi.  39,  424,  444. 


THE   MYTH   OF   THE   THREE  ESTATES  71 

provinces ;  and  the  privy  council  speaks  of  the  three  estates 
of  Guienne  before  it  speaks  of  the  three  estates  of  England 
or  Ireland.^  EngHshmen,  however,  seemed  to  be  conscious 
of  the  false  assimilation,  and  the  phrase  "  provincial  estates" 
was  never  apparently  apphed  to  the  assembhes  of  the  so- 
called  Enghsh  palatinates.  Fortescue  will  not  call  parlia- 
ment three  estates;  he  cautiously  remarks  that  the  three 
estates  of  France  *'  when  they  bith  assembled,  bith  like  to 
the  courte  of  the  parlement  in  Ingelonde  " ;  and  Commines 
will  only  say  of  Edward  IV's  parliament  that  it  vault  autant 
comme  les  trois  estatz^  And  the  phrase  in  its  older  and 
vaguer  sense  continued  in  vogue.  Bishop  Stillington,  in 
7  Edward  IV,  calls  the  lords  spiritual,  lords  temporal,  and 
commons  the  three  estates  of  the  realm,  but  speaks  of  a 
royal  estate  over  them  all.^  The  council  talks  in  1440  of 
the  "  estates  of  holy  church,"  just  as  in  Edward  I's  reign 
the  "  Rolls  "  speak  of  tons  ces  estats  de  prelacie.^  In  1491 
Henry  VII,  in  a  proclamation,  speaks  of  being  informed 
**  by  the  estates  and  nobles  " ;  in  1497  Perkin  Warbeck  refers 
to  Henry's  projected  flight  "in  person  with  many  other 
estates  of  the  land  " ;  and  in  15 13  the  commons  desire 
"  the  great  estates,  peers  and  nobles  of  this  realm  "  to 
grant  adequate  taxes.  A  chronicler  of  Henry  VII's  reign 
gives  the  following  illustrations  of  the  persistent  indefinite- 
ness  of  the  phrase  :  ''  there  stood  the  king,  queen,  and 
many  great  estates  of  the  realm  ...  the  said  estates 
took  their  horses  and  chairs,  and  so  rode  to  Richmond," 
and  again,  "  considering  the  great  and  notable  court  that 
there  was  holden,  as  first  the  king,  the  queen,  my  lady  the 
king's  mother,  with  my  lord  of  York,  my  lady  Margaret, 
and  divers  other  estates."  ^ 

1  Nicolas,  V.  161.  ^,  ^   _._ 

«  Fortescue,  Governance  of  England,  ed.  Plummer,  PP-  "3,  i95. 
3  Fortescue  p.  127,  also  says  that  the  King's  estate  is  the  highest  estate 
temporal  on  eLh/'So  James  I  says  the  " ^^f^  f  ^^J'^'''^^''  '^^ 
supremest  thing  on  earth."     (Prothero,  Documents  ed.  1898,  p-  293-; 
*  Proceedings  of  the  Privy  Council,  v.  88,  M^;  ^of  Par/.,  1.  219.    ^^ 
^  Steele,  PyoclJmations,i.  No.  17;   ^^y  ^^^^^^  ^^^  ^^?°V^?.L?/  fol    i 
Chronicles  of  London,  pp.  222,  245,  253,  2C3 ;  if  ^^^'^,/Sv  assemble 
p.  xxvi.;  cf.  L.  and  P,i5^9>  i.  No.  858,  "states  doth  daily  assemDie 
against  the  parliament." 


72  THE  EVOLUTION  OF  PARLIAMENT 

The  impression  produced  by  this  divergence  and  vague- 
ness in  the  use  of  the  word  "  estates  "  ^  is  borne  out  by  what 
we  know  of  the  medieval  organization  of  parhaments. 
Fleta  is  apparently  unaware  of  their  existence;  to  him 
parliaments  are  sessions  of  the  king's  council  in  the  presence 
of  earls,  barons,  nobles,  and  other  learned  men;  in  1305 
a  parliament  can  still  be  a  "  full  "  parliament  when  all 
but  the  councillors  have  withdrawn;  and  as  late  as  the 
reign  of  Henry  VI  the  lords  can  be  described  as  being  "  in 
full  parliament "  without  any  other  assessors.^  Even 
when  other  elements,  nominated  and  elected,  come  to  be 
recognized  as  normal  if  not  essential  additions  to  the 
council  for  parliamentary  purposes,  they  are  not  regarded 
or  organized  as  three  estates.  They  meet  and  transact 
their  public  business  in  a  single  chamber,  the  camera 
magni  consilii  vocata  le  parlement  chambre,  otherwise  known 
as  la  chambre  blanche  pres  de  la  chambre  peynte?  or  else 
in  that  Painted  Chamber,  sometimes  called  the  chamber  of 
Edward  the  Confessor,  where,  down  to  the  nineteenth 
century,  conferences  between  the  lords  and  commons  con- 
tinued to  be  held.*     In  this  council  chamber,  which  came 

*  This  absence  of  definite  estates  is  illustrated  by  a  corresponding 
absence  of,  or  vagueness  in,  the  designations  now  used  to  indicate 
differences  of  status.  Originally  havo  simply  meant  a  man ;  the  barones 
majores  were  the  king's  greater,  and  the  barones  minoyes  his  lesser, 
men.  In  the  fourteenth  century,  while  a  tenant  by  barony  might  be  de- 
scribed as  "  baro  "  of  such  and  such  a  barony,  just  as  we  may  describe 
so-and-so  as  lord  of  the  manor  of  this  or  that  place,  the  word  "  baro  "  was 
no  more  used  as  a  title  of  honour  than  lord  of  the  manor  is  to-day.  There 
was  nothing  in  his  designation  to  distinguish  a  ''peer  "  from  a  knight ;  the 
knight  may  have  been  a  lesser  baron,  but  his  inferiority  was  expressed 
in  the  extent  of  his  holding  and  his  lack  of  a  special  summons,  and  not 
in  his  mode  of  address ;  and  the  baron  might  or  might  not  be  a  knight. 
"  Dominus  "  and  "  Sir  "  were  titles  they  shared  alike,  and  they  shared  them 
both  with  priests ;  it  was  not  until  after  the  Reformation  that ''  Dominus  " 
and  "  Sir  "  were  replaced  by  "  Reverend "  as  the  normal  prefix  to  a 
cleric's  name.  "  Dominus,"  moreover,  as  applied  to  a  priest,  was  inferior  to 
"  Doctor  "  and  even  "Master,"  and  seems  to  have  been  applied  regularly 
to  those  who  had  taken  no  University  degree  or  none  higher  than  that 
of  Bachelor,  a  custom  still  retained  at  Cambridge. 

2  Proceedings  of  the  Privy  Council,  iii.  Ixi.  :  Nicolas  interprets  the  phrase 
as  meaning  "  a  full  meeting  of  peers."  But  there  are  other  lords  than 
peers :   "  lords  of  parliament  "  would  be  more  correct. 

*  Rot.  Pari.,  ii.  225,  vi.  232. 

*  May,  Parliamentary  Practice,  p.  496. 


THE  MYTH  OF  THE   THREE  ESTATES  73 

to  be  called  the  parliament  chamber  because  the  council 
parleyed  there,  lords  and  commons  still  assemble  as  one 
gathering  before  the  throne  to  hear  the  king's  speech,  the 
prorogation  or  dissolution  of  parhament,  and  the  royal 
assent  to  legislation,  although  the  historical  origin  of  the 
chamber  is  effectually  concealed  beneath  its  modern  name 
of  the  house  of  lords.  Edward  I  knew  no  more  of  two 
houses  than  he  did  of  three  estates ;  and  in  his  reign  and 
in  those  of  his  son  and  his  grandson,  all  the  formal  work  of 
parliament  is  done  in  common  session.  It  is  only  the  work 
thus  done  in  common,  and  perhaps  in  pubhc,  that  is  officially 
recorded  in  the  "  Rolls  of  Parliament."  Such  are  the 
"  acts  "  of  parhament. 

This  common  session,  however,  while  convenient  and 
even  indispensable  for  the  formal  proceedings  of  parha- 
ment, was  no  less  inconvenient  for  its  real  work  of  delibera- 
tion and  discussion.  Only  rigid  rules  of  procedure,  the 
result  of  six  centuries  of  elaboration,  enable  a  body  so 
homogeneous  as  the  present  house  of  commons  to  transact 
any  business  at  all;  in  the  assemblies  which  the  first  two 
Edwards  called  few  rules  of  procedure  had  yet  been  evolved, 
and  the  gatherings,  whether  they  consisted  of  six  grades  or 
of  three  estates,  were  too  heterogeneous  to  act  in  common. 
If  the  king  extracted  any  response  at  all  to  his  demands 
for  money  or  requests  for  counsel,  it  would  be  a  babel  of 
tongues.  Intelligent  answers  could  only  proceed  from 
previous  consultation;  and  the  exigencies  of  consultation 
required  some  sort  of  organization.  The  accepted  theory/ 
is  that  this  organization  took  from  the  first  the  form  oil 
two  houses  or  three  estates;  the  Modus  Tenendi  Parha-f 
mentum  speaks,  on  the  other  hand,  of  six  grades,  assignmg 
to  each  a  clerk,  whose  function  was  presumably  to  reduce 
the  resolutions  of  his  "  grade  "  to  writing,  and  possibly  to 
keep  some  record  of  its  proceedings.  The  "  Rolls  of  Parlia- 
ments "  do  not  support  either  theory  in  its  entirety ;  they 
refer  vaguely  to  an  indefinite  number  of  "  estates  ;  but 
never,  I  think,  to  more  than  two  clerks.  One  was  the  clerk 
of  the  parliaments,  who  sat  in  the  parliament  chamber,  ana 


74  THE   EVOLUTION   OF  PARLIAMENT 

still  sits  in  the  house  of  lords ;  ^  and  the  other  was  the 
clerk  of  the  domus  communis.  There  may  have  been 
more;  the  proctors  of  the  clergy  doubtless  had  a  clerk  of 
their  own,  who  might  also  be  a  clerk  of  convocation,  and 
the  different  answers  sometimes  returned  by  the  knights 
and  the  burgesses  imply  separate  deliberation  and  possibly 
separate  clerks  to  record  their  results.  But  if  the  picture 
drawn  in  the  Modus  ever  represented  actual  practice, 
that  practice  was  greatly  modified  during  the  fourteenth 
century ;  and  by  a  process  of  elimination  and  amalgamation 
the  six  grades  were  reduced  to  three  or  two. 

In  the  first  place,  thg^jil£3ricaj_£ro_ctors  preferred  to  give 
their  answers  to  the  king's  proposals  in  convocation,  and 
absented  themselves  from  the  parliament  chamber,  though 
their  right  to  petition  the  king  in  parliament  remained,  and 
in  Richard  II's  reign,  the  appointment  of  Thomas  Percy  as 
clerical  proctor,  to  assent  to  the  proceedings  against  the 
Appellants,  paid  homage  to  the  doubtful  theory  that  clerical 
consent  was  necessary  to  their  validity. ^  This  abstention 
eliminated  one  of  the  six  '*  grades  "  of  the  Modus.  Another 
disappeared  with  the  amalgamation  of  the  koiglits.  and 
burgesses,  and  a  third  with  the  merging  of  the  specially- 
summoned  barons  and  prelates  under  the  common  designa 
tion  of  "  seigneurs  "  or  "  lords  "  of  parliament.  The  process 
was  thus  complete  by  which  parliaments  came  in  appearance 
to  consist  of  two  houses  and  of  three  estates.  It  was  due, 
however,  not  to  any  preconceived  ideas  about  the  value  of 
a  bi-cameral  legislature  or  of  a  threefold  system  of  estates, 
but  to  the  operation  of  royal  writs  and  political  con- 
venience. It  was  the  custom  of  the  king's  chancery,  in 
issuing  special  writs  of  summons,  that  differentiated  the 
lesser  from  the  greater  baron,  the  "  peer  "  from  the  knight 

1  His  present  postal  address,  "  Clerk  of  the  Parliaments,  House  of 
Lords,"  is  in  itself  an  item  of  historical  evidence.  The  use  of  the  plural, 
"  parliaments,"  and  the  juxtaposition  of  the  two  terms,  point  the  contrast 
between  the  medieval  and  the  modern  view  of  his  position. 

2  Rot.  Pari.,  iii.  348,  356.  There  is  no  evidence  of  the  actual  presence 
of  the  well-known  Thomas  Haxey  in  the  parliament  of  1396;  he  seems 
merely  to  have  sent  up  a  bill  to  the  commons  upon  which  they  acted 
{ibid.,  iii.  339). 


THE   MYTH  OF   THE   THREE  ESTATES  75 

of  the  shire,  and  one  abbot  from  another.  As  early  as  the 
reign  of  Edward  III  there  was  a  hst  in  existence  of  twenty- 
eight  abbots  whom  it  was  not  customary  to  summon  by 
special  writ,^  and  this  custom  made  some  of  them  lords  of 
parliament  and  left  others  out  in  the  cold.  It  was  political 
convenience  that  led  the  knights  of  the  shire  to  coalesce 
with  the  burgesses,  and  induced  the  clerical  proctors  to 
confine  themselves  to  convocation. 

Both  the  process  of  coalition  and  that  of  ehmination 
would  have  been  impossible  had  there  been  any  marked 
division  of  estates.  The  mere  fact  that  the  knights  of  the 
shire  could  separate  from  the  other  barons  and  throw  in 
their  lot  with  the  burgesses  proves  that  the  lines  of  de- 
marcation were  not  deep  or  fundamental.  There  was,  indeed, 
a  sharp  distinction  between  the  freeman  and  the  villein; 
but  that  had  nothing  to  do  with  parliamentary  organization. 
The  villein  had  no  "  estate  "  in  anything,  and  nowhere  did 
he  constitute  an  "  estate  "  of  the  realm.  He  had  no  status 
or  locus  standi  in  the  king's  court,  except  in  so  far  as  he 
was  protected  by  the  king's  claim  to  criminal  jurisdiction, 
and  therefore  none  in  the  king's  high  court  of  parliament. 
The  other  clear  distinction  in  English  medieval  society  was 
between  layman  and  clerk;  but  that,  too,  soon  ceased  to 
influence  parliamentary  organization,  because  the  proctors 
ceased  to  attend,  and  in  the  "  upper  house  "  or  great  council 
in  parhament  the  common  receipt  of  a  special  writ  over- 
rode the  distinction  between  spiritual  and  temporal;  the 
peers  did  not  act  as  two  estates,  but  as  counsellors  of  the 
crown. 

This  had  an  aU-important  effect  upon  the  course  of 
English  constitutional  history,  and  saved  the  country  on 
more  than  one  occasion  from  formal  revolution.  If  the 
necessary  assent  of  the  lords  spiritual  and  temporal  to  legis- 
lation had  involved  the  independent  assent  of  a  majority 
of  each  "  estate,"  many  a  change  constitutionally  carried 
out  could  only  have  been  effected  by  revolution.  As  it 
was,  spiritual  votes  could  help  to  carry  temporal  reforms 
1  Pike,  p.  349 ;  see  below,  p.  99« 


76  THE  EVOLUTION  OF  PARLIAMENT 

in  the  teeth  of  a  majority  of  temporal  peers,  and  temporal 
votes  could  carry  religious  reforms  in  spite  of  spiritual 
peers.^  The  bishops  and  abbots  protested  against  the 
statutes  of  pro  visors  and  praemunire;  they  were  none  the 
less  law  for  that,  and  the  prelates  did  not  pretend  that  their 
protest  had  the  effect  of  a  royal  veto.  A  majority  of 
spiritual  peers  did,  indeed,  vote  for  Henry  VII I's  and 
Somerset's  ecclesiastical  changes;  but  with  Warwick's 
accession  to  power  and  the  adoption  by  the  government  of 
definitely  protestant  proposals,  this  ecclesiastical  acquies- 
cence disappeared,  and  the  crisis  came  in  the  first  year  of 
Elizabeth.  Every  spiritual  peer  present  voted  against  her 
act  of  supremacy  and  her  act  of  uniformity,  and  the  latter 
was  only  carried  by  a  majority  consisting  of  twenty-one 
temporal  peers  over  a  minority  consisting  of  eighteen  spiritual 
and  temporal  peers.  By  no  conceivable  stretch  of  language 
could  it  be  contended  that  the  spiritual  "  estate  "  had 
consented  to  Elizabeth's  settlement  of  religion,  although 
the  notion  of  three  estates  had  by  this  time  made  sufficient 
way  to  countenance  the  theory  that  the  assent  of  each  was 
indispensable  to  the  validity  of  legislation.  If  this  was 
the  true  theory  of  the  constitution,  then,  indeed,  the  acts 
of  supremacy  and  uniformity  were  not  merel37  unconsti- 
tutional, but  illegal;  in  fact,  they  were  no  acts  at  all, 
and  the  courts  should  have  refused  to  carry  them  out. 
But  it  was  not,  and  never  had  been,  the  true  theory  of  the 
constitution,  because  parHaments  had  never  consisted  of 
estates  at  all.  Nor  was  it  possible  to  escape  from  the 
dilemma  by  the  hypothesis  that  a  majority  of  two  out  of 
the  three  estates  could  over-ride  the  third;  for  in  that 
case  the  lords  spiritual  and  temporal  could  always  have 
legislated  in  defiance  of  the  commons,  but  in  Henry  VII's 
reign  the  judges  had  laid  it  down  that  even  for  an  act  of 

1  It  has  often  been  contended  that  Elizabeth's  ecclesiastical  settlement 
was  unconstitutional  because  it  was  carried  against  the  votes  of  the 
spiritual  peers ;  but  the  same  theory  would  invalidate  temporal  measures 
carried  by  episcopal  votes,  except  on  the  assumption  that  ecclesiastical 
affairs  were  the  concern  of  ecclesiastics  alone,  but  state  affairs  were  the 
common  concern  of  laymen  and  ecclesiastics. 


THE  MYTH  OF   THE   THREE  ESTATES  77 

attainder,  an  almost  purely  judicial  function,  the  co- 
operation of  the  commons  was  essential.^  The  theory  of 
the  three  estates  would,  in  fact,  if  there  had  been  any 
-substance  in  it,  have  stereotyped  and  petrified  the  consti- 
tution in  the  middle  ages.  But  Englishmen's  political 
instinct  has  always  been  sounder  than  their  scholarship  or 
their  logic;  and  constitutional  progress  has  not  been 
seriously  impeded  by  the  theories  of  constitutional  historians. 
It  is,  indeed,  hardly  too  much  to  say  that  parhamentj^so 
far  from  being  a  system  of  three  estates,  is  the  very  nega- 
tion of  the  whole  idea.  A  system  of_estates  is  built  upon 
the  principle^  not  of  national,  but  of  class  representation; 
it  suggests  that "aTiiafiohTs" not  onej_But  three  states,  each 
with  aiTlndependeiit  will  of  its^  own,  and  each  entitled  to 
veto  national  progress'."  lF"was  by  no  accident  that  the 
first"^ep"  rn~tTLe  first  French  Revolution  was  the  fusion  of 
the  three  estates  into  one  National  Assembly.  The  differ- 
ence between  EngUsh  and  French  development  was  that 
in  France  the  fusion  was  instantaneous  and  therefore  caused 
an  explosion,  while  in  England  it  was  a  gradual  trans- 
,  formation  spread  over  centuries.  The  reduction  of  the  six 
"  grades "  of  the  Modus  to  two  or  three  was  an  illus- 
tration of  the  process,  and  a  proof  of  the  elasticity  of  the 
English  political  and  social  system.  There  were  no  fixed 
gulfs  between  the  different  grades  which  the  royal  authority 
could  not  bridge.  If  the  knights  deliberated  apart  from 
the  magnates,  it  was  not  because  there  was  any  social 
barrier  between  them,  but  because  the  crown  directed  them 
to  dehberate  with  the  commons;  and  conversely  it  directed 
the  prelates  and  magnates  to  consult  together.^  The 
crown,  too,  could  issue  a  special  writ  of  summons  to  a 
knight  and  thus  convert  him  into  a  magnate;    and  by  a 

*  See  my  Henry  VII,  ii.  No.  14.  .  . 

t  Rot  Pari  ih  135  This  explicit  direction  of  the  crown  in  1343 
implfes  that  prelates^ind  magnates,  knights  and  burgesses  might  have 
otherwise,  and  probably  had  previously,  debberated  apart  and  returned 
separate  answers ;  and  if,  with  Mr.  Pike,  we  assign  the  Modus  to  the  second 
quarter  of  the  fourteenth  century,  this  direction  would  tend  to  strengthen 
the  credibUity  of  its  division  of  parliaments  into  six  grades. 


78  THE  EVOLUTION   OF  PARLIAMENT 

writ  of  distraint  could  make  an  esquire  into  a  knight.  The 
most  permanent  factor  in  the  English  medieval  represen- 
tative system  consisted  of  the  knights  of  the  shire,  and  they 
represented,  not  an  estate,  but  the  shire  courts  of  the  realm. 
**  Status,"  indeed,  entitled  no  one  to  any  position  in  medieval 
parliaments ;  their  composition  and  their  organization  were 
alike  determined  by  royal  writs  and  royal  directions.  Even 
to-day  it  is  a  royal  writ,  and  not  hereditary  right,  that 
entitles  a  peer  to  sit  in  the  house  of  lords;  and  it  was  a 
royal  writ  that  entitled  a  borough  to  elect  a  member  of 
the  house  of  commons.  It  is  true  that  through  judicial 
decisions  in  one  case,  and  through  statute  law  in  the  other, 
the  crown  has  lost  the  power  of  refusing' a  special  writ  of 
summons  to  the  eldest  son  of  a  peer  or  a  general  writ  to  a 
borough;  but  without  the  writ  the  peer's  heir  could  not 
take  his  seat  and  the  borough  could  not  elect,  and  the 
modern  form  is  the  relic  of  a  medieval  power. 

Nor  is  it  without  significance  that  the  EngHsh  was  the 
only  representative  system  called  a  parliament,  or  that 
other  nations,  when  they  set  about  imitating  English  insti- 
tutions, abandoned  the  name  of  estates.  Emphasis  has, 
in  fact,  been  continually  laid  by  constitutional  historians 
upon  the  differences  between  English  and  foreign  represen- 
tative systems;  but  it  is  singular  that  they  should  have 
sought  to  fix  upon  the  English  parliament  a  designation 
appropriate  only  to  those  estates  from  which  its  difference 
is  so  clearly  marked.  Estates-general  could  only  vote 
taxes  and  petition  for  redress;  they  could  not  impeach, 
or  pass  acts  of  attainder,  or  enforce  the  responsibility  of 
ministers.  For  they  were  not  a  court  of  law,  and  it  was 
from  its  armoury  as  the  sovereign  court  that  parliament 
drew  the  weapons  it  used  with  most  effect  against  the 
crown.  Its  procedure  by  bill  was  borrowed  from  chancery, 
its  powers  of  judicature  were  inherited  from  the  curia  regis, 
its  acts  have  always  been  "  due  process  of  law" — a  character 
which  American  judges  have  denied  to  acts  of  the  American 
congress ;  for  that  is  not  a  parliament  or  a  court. 

The  ineffectiveness  of  estates-general  arose  from  the  fact 


THE   MYTH  OF  THE   THREE  ESTATES  79 

that  they  were  nothing  but  a  body,  or  bodies,  of  repre- 
sentatives. They  were  not  numbered  among  the  "  cours 
souverains "  of  France,  and  the  judicial  functions  per- 
formed by  the  Enghsh  pariiament  were  left  in  France  to 
the  non-representative  parlements.  The  use  of  impeach- 
ment and  acts  of  attainder  in  England  from  the  fourteenth 
to  the  eighteenth  century  may  have  involved  injustice  to 
individuals,  but  it  was  of  inestimable  service  to  English 
constitutional  progress  that  the  judicial  review  of  state 
offences  should  have  been  preserved  for  the  EngUsh  repre- 
sentative assembly  by  the  fact  that  it  was  a  parliament 
rather  than  a  system  of  estates.  It  was  hardly  of  less  im- 
portance that  the  representative  elements  themselves,  when 
added  by  Simon  de  Montfort  and  Edward  I  to  the  king's 
council  in  parliament,  should  have  appeared  in  a  juridical 
guise.  Every  suitor  to  the  county  court  in  which  members 
were  returned  to  the  house  of  commons  was  an  actual 
juror;  the  elector  was  present  at  the  election  primarily 
because  he  had  to  attend  the  court  for  judicial  business. 
And  the  legal  capacity  clung  to  their  representatives;  if 
the  lords  in  parliament  were  its  judges,  the  commons, 
says  Prynne,  were  **  informers,  prosecutors,  grand  jury- 
men." *'  Through  all  their  history,  too,  the  Commons  have 
remained  '  the  Grand  Inquest  of  the  Nation.'  Judges  and 
inquest  the  two  Houses  were  before  they  were  joined; 
Council  and  Grand  Inquest  they  remained;  and  this  con- 
ception of  their  origin,  their  character,  their  duties,  and 
their  privileges  serves  in  a  large  measure  to  explain  through- 
out the  history  of  Parliament  not  only  the  claims  of  one 
House  against  the  other,  but  also  their  common  claims  as 
the  High  Court  of  Parliament."  ^  --..-^ 

But  while  parliament  consists,  in  its  judicial  aspect,  of  \ 
judges  and  inquest,  it  is  in  its  political  aspect  a  meeting 
of  council  and  community.  Members  of  the  upper  house 
have  properly  claimed  to  be  historically  the  counsellors  of 
the  crown,  although  hereditary  right  was  not  the  original 
basis   of  their  title  to  give   counsel  to  the  crown;    and 

1  Mcllwain,  The  High  Court  of  Parliament,  pp.  186-7. 


8o  THE  EVOLUTION   OF  PARLIAMENT 

historically  the  house  of  lords  is  the  king's  council  in 
parliament.  No  quorum  was,  however,  required  to  give 
validity  to  the  action  of  a  royal  council;  because  its  func- 
tion was  to  advise,  and  the  act  was  always  the  king's. 
Thus  the  Modus  goes  so  far  as  to  say  that  even  though 
every  specially-summoned  magnate  absented  himself  from 
a  meeting  between  the  crown  and  the  community,  the  meet- 
ing might  still  be  a  valid  parliament.  The  two  essential 
factors  were  the  crown  and  the  community,  that  com- 
munitas  communitatum  which  came  to  be  called  the  house 
of  commons.  If  this  seems  modern,  it  is  also  medieval 
doctrine;  and  the  conservative  value  of  history  is  that, 
when  properly  understood,  it  helps  us  to  see  how  reform 
succeeds  not  by  innovation,  but  by  the  renovation  and 
expansion  of  the  principles  and  practice  out  of  which  the 
constitutional  fabric  has  been  made.  If  parliaments  had 
ever  been  based  on  a  foundation  of  three  estates,  our 
constitutional  development  would,  have  encountered  that 
dilemma  of  stagnation  or  revolution  which  sooner  or  later 
has  confronted  every  representative  system  founded  on 
class  divisions.  It  was  a  happy  fate  for  England  that  its 
parliaments  were  dominated  by  elements,  ideas,  and  a  pro- 
cedure emanating  from  the  curia  regis  until  after  its  estates 
had  been  merged  by  the  growth  of  national  feeling  into  a 
single  state. 


CHAPTER  V 

THE   FICTION   OF  THE   PEERAGE 

In  speaking  of  the  **  fiction  "  of  the  peerage,  no  allusion 
is  intended  to  certain  sumptuous  and  annual  publications, 
the  genealogical  contents  of  which  might  fairly  entitle  them 
to  that  description.  Nor  is  it  meant  to  deny  that  a  work  of 
fiction  may  be  good  as  well  as  bad.  Fictions,  and  especially 
legal  fictions,  have  played  a  great  and  sometimes  a  beneficent 
part  in  English  constitutional  history.  The  presence  of  the 
king  in  every  court  and  every  parliament  in  the  empire  is 
a  useful  fiction ;  the  dogmas  that  **  the  king  never  dies  " 
and  can  do  no  wrong,  are  others  of  no  less  value.  By  means 
of  fictions  judges  have  made  law,  and  there  is  a  considerable 
element  of  truth  in  the  claim  that  on  some  occasions  national 
legislation  by  the  judges  over-rode  the  class  legislation  of 
parliaments.^  At  times  the  fictions  of  the  courts  have  been 
strong  meat,  and  the  identification  of  Cheapside  with  "  the 
high  seas,"  which  was  once  effected  in  a  court  of  law  to  bring 
a  case  within  its  jurisdiction,  marks  perhaps  the  limit  to 
which  the  process  should  be  carried. ^  But  the  house  of 
lords  is  the  highest  court  of  law  for  civil  jurisdiction  in  the 
British  Isles,  and  it  is  natural  that  there  legal  fictions  should 
have  winged  their  highest  flight.  Certainly  no  legal  fiction 
runs  counter  to  more  historical  fact  than  the  rule  of  the  house 
of  lords  that  a  special  writ  of  summons  to  the  Model  Par- 
liament of  1295  entitled  its  recipient  and  his  successors  to 
an  hereditary  peerage,  and  consequently  to  a  special  writ  of 
summons  to  every  succeeding  parliament  until  his  lineage 

1  T.  E.  Scrutton,  The  Land  in  Fetters,  p.  76. 

2  Mcllwain,  p.  266. 

G  81 


82  THE  EVOLUTION  OF  PARLIAMENT 

was  extinct;  and  that  if  a  commoner  can  to-day  prove 
himself  to  be  the  eldest  male  descendant  in  the  eldest  male 
line  of  any  one  who  has  since  1295  been  specially  summoned 
to  and  taken  his  seat  in  a  parliament,  he  becomes  thereby 
entitled  to  a  peerage  of  the  United  Kingdom  and  his  blood 
is  ennobled  for  ever. 

Before  we  proceed  to  examine  this  tissue  of  legal  fiction 
and  its  bearing  upon  the  history  of  parliament,  it  may  be 
well  to  enter  a  plea  on  behalf  of  the  committee  of  privi- 
leges which  advises  the  house  of  lords  on  peerage  cases. 
Every  one  of  the  distinguished  lawyers  who  constitute  that 
court  is  perfectly  aware  by  this  time  that  this  rule  is  based 
on  a  mass  of  historical  falsehood ;  he  will  none  the  less  be 
bound  in  conscience  to  enforce  it  as  the  law.  For  the  law 
takes  little  cognisance  of  historical  fact  until  the  fact  has 
been  interpreted  by  the  law;  and  then  the  interpretation 
becomes  both  fact  and  law.  Once  the  interpretation  has 
been  accepted,  the  historical  fact  or  fiction  upon  which  it 
was  originally  based  becomes  irrelevant;  and  no  amount 
of  historical  investigation  can  affect  the  law.  It  is  the 
law  of  the  land  that  any  one  who  proves  himself  the 
heir  of  a  magnate  of  1295  is  entitled  to  a  peerage.  Not 
even  the  crown  can  debar  him  from  it;  and  the  court 
is  bound  to  enforce  that  law.  It  is  also  apparently  bound 
to  do  far  greater  violence  to  historical  truth,  to  interpret 
historic  facts  of  the  fourteenth  century  in  the  light  of  a 
law  that  was  not  evolved  till  the  seventeenth,  and  to 
assume  that  when  Edward  I  or  Edward  II  summoned  a 
man  by  special  writ  to  a  parliament  he  intended  to  create 
an  hereditary  peerage.  From  the  point  of  view  of  the  court 
it  is  entirely  irrelevant  to  prove  that  Edward  I  would  not 
have  known  what  the  phrase  "  hereditary  peerage  '*  meant, 
that  he  never  created  or  intended  to  create  one  in  his  life, 
that  scores  of  barons  summoned  by  special  writ  to  one 
parliament  were  not  summoned  again,  and  that  no  one  for 
more  than  a  century  after  Edward  I's  death  dreamt  of 
claiming  a  right  to  a  peerage  at  all. 

All  this  would  be  merely  historical  fact ;   to  impress  the 


THE  FICTION  OF  THE  PEERAGE  83 

court  one  must  show  that  this  historical  fact  had  been 
interpreted  as  law.  It  is  fortunate  for  the  peerage  that  the 
house  of  lords  can  take  no  cognisance  of  historical  fact  which 
conflicts  with  its  own  judicial  interpretations.  If  the  house 
of  lords  says  a  commoner  is  a  peer,  he  is  a  peer,  however 
inadequate  or  erroneous  its  reasons  may  have  been.  A 
peerage  adjudged  to  a  claimant  on  the  strength  of  a  forged 
pedigree  is  not  forfeited  by  the  subsequent  proof  of  the 
forgery.  A  peerage  adjudged  to  the  heir  general  on  the 
strength  of  the  presumption  that  it  was  created  by  writ 
of  summons  is  not  forfeited  by  the  subsequent  discovery 
of  letters  patent  limiting  its  descent  to  the  heirs  male; 
for  no  writs  of  error  lie  against  the  house  of  lords, 
interpretation  supersedes  the  fact,  and  the  law  is  superior 
to  history.  This,  indeed,  is  common  sense;  quod  non  fieri 
dehuit,  factum  valet.  Much  of  the  law  of  England  might 
disappear  altogether  if  its  legality  depended  upon  the 
historical  accuracy  of  the  claims  to  peerage  possessed  by 
those  who  voted  for  it;  and  the  legal  foundations  of  the 
English  church  itself  would  no  longer  be  secure  if  the  validity 
of  Elizabeth's  act  of  uniformity  could  be  shaken  by  attack^ 
ing  the  pedigrees  of  three  of  the  peers  who  constituted  the 
majority  in  its  favour. 

We  are  not,  however,  here  concerned  with  the  legal  vaHdity 
of  the  lords'  decisions,  except  to  point  out  that  the  law  of 
the  peerage  is  not  historical  evidence,  and  that  judicial 
theories  are  as  irrelevant  to  historical  investigation  as 
historical  fact  is  to  legal  decisions.  The  lawyer  is  bound  by 
judicial  decisions  which  are  more  important  than  evidence; 
the  historian  is  free.  A  judge  can  make  law  in  a  sense  in 
which  the  historian  cannot  make  history.  It  might  indeed 
be  contended  that  historians  have  been  responsible  for  not 
less  fiction  than  the  courts  of  law;  but  there  is  a  difference. 
The  fiction  of  the  courts  becomes  a  binding  law;  the  fiction 
of  the  historian  onlv  entertains  the  student.  It  is  only 
when  history  is  merged  in  theology  that  pontifical  utterances 
are  considered  decisive  of  historical  problems.  It  is  not 
the  historian's  function  to  wear  the  black  cap  or  to  speak 


84  THE  EVOLUTION  OF  PARLIAMENT 

ex  cathedra ;  his  opinion  constitutes  neither  a  sentence  nor 
a  dogma,  and  there  are  no  penalties  for  contempt  of  court. 

The  fictions  of  the  courts  and  of  the  crown  are  much  more 
serious  matters.  Solus  princeps,  runs  a  legal  maxim,  fin  git 
quod  in  rei  veritate  non  est ;  ^  supreme  capacity  for  fiction 
is  an  attribute  of  sovereign  power.  Sometimes  it  seems 
more  like  the  last  resort  of  weakness,  and  some  of  the  fictions 
of  the  crown  have  proved  an  ever-present  help  in  time  of 
trouble.  Such  were  the  rules  that  an  allegation  of  the  crown 
could  not  be  traversed,  and  that  only  those  things  were 
"  records "  which  the  crown  could  call  to  mind.  The 
memory  of  the  crown  became  the  evidence  for  the  fact. 
But  it  had  in  time  to  share  its  privileges  with  the  peers  and 
to  acquiesce  in  the  distribution  of  its  sovereign  power ;  and 
peerage  law  is  not  a  fiction  of  the  crown,  but  the  invention 
of  the  house  of  lords. 

None  of  the  lords'  decisions  have,  however,  summed  up 
quite  so  briefly  so  much  absurdity  as  the  popular  phrase 
*'  blue  blood."  It  would  hardly  be  worth  while  examining 
the  fantastic  implications  of  this  expression  of  the  theory 
of  peerage,  had  it  not  been  seriously  defended  by  the  latest 
historian  of  the  house  of  lords,  who  writes  with  intimate 
knowledge  of  many  aspects  of  peerage  history.  "  The 
doctrine,"  says  Mr.  Pike,^  **  is  no  absurdity  at  all,  but  one 
which  is  perfectly  intelligible,  perfectly  consistent  with  itself 
at  all  points,  and  as  scientific  as  anything  to  be  found  in 
medieval  or  modern  literature."  Neither  medieval  nor 
modern  literature  is  perhaps  the  place  to  look  for  science, 
and  it  may  be  that  this  pronouncement  is  not  intended  to 
be  so  portentous  as  it  appears.  The  obvious  criticism, 
that  the  blood  of  the  younger  sons  of  a  peer  is  just  as  blue 
as  that  of  their  eldest  brother,  and  yet  does  not  make  them 
peers,  is  met  by  the  explanation  that  the  doctrine  of  blue 
blood,  properly  understood,  does  not  mean  that  blueness 
of  blood  in  itself  made  its  fortunate  possessor  a  peer,  but 
makes  him  capable  of  inheriting  a  peerage.     This  may  be 

1  Maitland,  Collected  Papers,  iii.  310. 

*  Const.  History  of  the  House  of  Lords,  pp.  141  sqq. 


THE  FICTION  OF  THE  PEERAGE  85 

comforting  to  a  considerable  number  of  Englishmen;  for 
there  are  some  thousands  of  Hving  descendants  of  our  kings ;  1 
and  there  must  be  hundreds  of  thousands  descended  from 
the  younger  sons  of  peers.  They  are  commoners  none  the 
less,  and  the  blueness  of  their  blood  gives  them  no  legal 
or  political  distinction  whatsoever.  If  this  is  all  that  is 
meant  by  this  perfectly  scientific  doctrine,  it  has  nothing  to 
do  with  peerage.  For  there  is  no  mistake  about  a  peer; 
the  legal  and  political  distinctions  between  him  and  a  com- 
moner are  clear  and  sharp  enough,  and  they  can  be  acquired 
without  any  pretence  to  blueness  of  blood.  Moreover,  in 
the  middle  ages  the  husband  of  a  peeress  in  her  own  right, 
although  himself  a  commoner,  was  often  summoned  by 
special  writ  to  parliaments.  Mr.  Pike  himself  quotes  the 
case  of  Ralph  de  Monthermer,  who  was  summoned  as  Earl 
of  Gloucester  and  Hereford  in  the  right  of  his  wife,  but  lost 
to  her  son  the  right  to  be  summoned  when  that  son  came 
of  age. 2  He  seems  to  have  enjoyed  that  strange  anomaly, 
a  temporary  lease  of  blueness  of  blood  !  Into  such  vagaries 
can  people  be  betrayed  by  mixing  a  physiological  term  like 
blood  with  law  and  politics.  Titles  to  peerage  have  been 
decided,  not  by  blueness  of  blood,  but  by  royal  writs  and 
judicial  decisions.  If  it  pleases  people  to  think  that  their 
blood  was  turned  blue  by  a  writ  of  summons  or  letters 
patent,  and  made  red  again  by  attainder,  there  is  no  harm 
in  the  superstition ;  but  it  need  not  concern  the  student  of 
the  history  of  the  peerage. 

There  are  two  serious  problems  to  be  considered.  Firstly, 
what  is  "  peerage,"  and  how  did  it  develop  ?  And  secondly, 
how  did  it  come  to  enjoy  its  present  position  in  parliament  ? 
The  two  are  distinct  questions,  for  there  is  no  necessary 
connexion  between  peers  and  parhaments,  at  any  rate  not 
in  the  modem  sense  of  the  peerage.  But  the  word  itself 
has  passed  through  the  whole  gamut  of  meaning,  from  its 

1  See  Joseph  Foster,  The  Royal  Lineage  of  our  Noble  and  Gentle  FamilieSy 

2  Elsynge,  Modus,  pp.  39,  55  ',  Pike,  Const.  History  of  the  House  of  Lords, 
pp.  70-2.  He  was  subsequently  summoned  as  Baron  Monthermer  m  his 
own  right. 


86  THE  EVOLUTION  OF  PARLIAMENT 

etymological  sense  of  "  equal  "  to  its  modern  implications 
of  privilege.  In  the  earliest  Anglo-Norman  legal  termin- 
ology it  simply  denoted  equality.  Co-heiresses  were  said 
to  be  pares  in  respect  of  their  father's  inheritance,  because 
all  inherited  equal  shares;  a  villein  was  described  as  the 
"  peer  "  of  other  villeins  holding  of  the  same  lord.  There 
were,  in  fact,  all  sorts  of  peers ;  we  read  of  "  peers  of  the 
county,"  and  "  peers  of  the  borough  " ;  Valenciennes  had 
twelve  peers,  so  had  Lille,  and  Rouen  had  a  hundred  in 
the  time  of  King  John.^  The  Modus  Tenendi  Parli amentum 
implies  that  every  member  of  a  parhament  was  a  peer, 
by  dividing  the  whole  assembly  into  sex  gradus  parium, 
clerical  proctors,  knights,  and  burgesses,  as  well  as  prelates 
and  magnates. 

But  even  before  the  Norman  Conquest  a  limitation  begins 
to  be  attached  to  the  meaning  of  *'  peer  "  on  the  continent, 
a  limitation  arising  out  of  its  frequent  association  with 
the  words  judicium  and  judicare.  Under  Charles  the  Bald 
in  856  and  Conrad  the  S^Hc  in  1037  we  find  it  stated 
that  men  are  to  hg^^Med  per  pares  suos  or  secundum 
judicium  parium  sm^^^  ^  and  in  England  from  Henry  I 
to  Magna  Carta,  we  rSvq|:onstant  references  to  the  principle 
quisque  judicandus  est  pef  pares  suos  et  ejusdem  provincice. 
Peer,  baron,  and  judge  come  to  be  used  as  almost  synonymous 
terms,  though  whifee  a  vassal  speaks  of  his  "  peers  "  the 
king  speaks  of  his  "  barons,"  because  the  king  has  no  peer 
in  his  kingdom.  By  this  time  only  those  are  peers  who  are 
equal  to  judgement,  and  this  excludes  the  majority;  villani 
vera,  Glanvill  tells  us,  non  sunt  inter  legum  judices  numerandi.^ 
This  is  the  meaning  of  "  peers  "  at  the  time  of  Magna  Carta. 
The  idea  that  judicium  parium  in  that  famous  document 
meant  trial  by  jury  has  been  too  often  exploded  to  need 
further  comment.*  But  it  is  material  to  our  purpose  to 
point  out  that  judgement  by  one's  equals  meant  that  one  was 
not  to  be  judged  by  inferiors ;   it  did  not  in  the  least  mean 

1  L.  Vernon  Harcourt,  His  Grace  the  Steward  and  Trial  by  Peers,  pp. 
226-7. 

2  Ibid.,  pp.  205-6. 
8  Ibid.,  p.  207. 

Cf.  McKechnie,  Magna  Carta,  1905,  pp.  158-63,  456-8. 


THE  FICTION  OF  THE  PEERAGE 


87 


that  one  was  not  to  be  judged  by  superiors.^  Our  criminals 
are  not  the  peers  of  our  judges ;  and  every  lord  of  a  manor 
could  judge  his  villeins. 

The  **  peers  "  are  thus  already  a  privileged  class;  they 
possess  the  right  to  be  judged  by  their  fellow-vassals  in  the 
king's  court,  and  the  right  to  judge  their  villeins  in  their  own.^ 
They  are  also  becoming  hereditary,  for  these  privileges  are 
always  attached  to  the  tenure  of  land,  and  the  tenure  of 
land,  though  at  first  a  mere  life  interest  conditioned  by  service, 
grows  more  and  more  into  irresponsible  property.  This 
process  was  accelerated  by  the  creation  of  strict  entails 
under  Edward  I.  Estates  now  passed  from  father  to  son  by 
right  of  heredity,  and  with  the  estates  the  privilege  of  exercis- 
ing judgement,  which  seems  to  be  the  essential  factor  in  peer- 
age. By  the  end  of  Edward's  reign  England  may  fairly  be 
said  to  have  had  an  hereditary  peerage. 

But  this  peerage  has  as  yet  little  to  do  with  parHament. 
There  are  many  hundreds,  possibly  thousaj]^|^i^f  these 
"  pares,"  but  Edward  I  summons  less  than  Jt^Mmdred  mag- 
nates by  special  writ  to  parHament.  .Those  who  sit  in 
parliament  have  no  hereditary  cla]a|M|  do  so.  The  word 
"  peer  "  does  not  occur  in  the  "  R3|IWf  Pariiaments  "  for 
his  reign,  and  it  is  not  mention|^  iii'  his  writs.  It  does  not 
entitle  any  one  to  a  special  writ  of  summons,  though 
probably  every  "  peer  "  was  either  summoned  in  person  or 
included  among  those  from  whom  the  sheriff  required 
obedience  to  the  general  writs.  But  the  "peers"  still 
numbered  their  thousands,  and  included  the  lesser  as  well 
as  the  greater  barons.  It  is  clear,  however,  that  the  process 
of  limitation,  begun  by  the  restriction  of  "  peerage  "  to  those 
who  could ''  judge,"  was  proceeding  apace  in  the  thirteenth 
century;  and  the  problem  is  to  bridge  the  gulf  between  the 
numbers  of  "  peers  "  entitled  by  Magna  Carta  to  judge  and 
be  judged  by  their  equals,  and  the  smaller  but  still  indefinite 

1  "  Assisi^  vero  tenentur  per   barones   et  legales  homines.     Par  per 
paremiudTctri  debet ;   barones  igitur  et  milites,  legis  statuta  scientes  et 
??eum  &tes  possnnt  judicare%nus  alium  et  -bditum  ei^  pop^^^^^^^^ 
rustico  enim  non  licet,  vel  aliis  de  populo,  militem  ^^1  clencum  ]udicare 
(Glanvill;  cf.   Pollock  and  Maitland,  i.  173;  Vernon  Harcourt,  pp.  207, 
214;  History,  April,  1920,  pp.  33-5)- 

2  Elsynge,  Modus,  p.  9- 


88  THE  EVOLUTION  OF  PARLIAMENT 

number  of  "  peers  "  who  develop  into  a  parliamentary  force 
under  Edward  II.  The  question  is  closely  connected  with 
the  change  in  the  magnum  concilium.  By  what  process 
were  the  thousands  of  tenants-in-chief,  presumed  to  have 
gathered  on  Salisbury  Plain  in  1086,  reduced  to  the  "  mag- 
nates "  who  gathered  at  Oxford  in  1258  ?  Or,  in  other  words, 
how  was  the  line  drawn  between  the  greater  barons  entitled 
by  Magna  Carta  to  a  special  writ  and  the  lesser  barons 
summoned  in  general  through  the  sheriff?  For  it  is  clear 
that  the  term  pares  tends  to  be  restricted  to  the  greater 
barons ;  and  the  same  question  might  be  put  in  yet  another 
form :  what  is  the  social  and  legal  difference  between  one 
who  holds  a  barony  and  one  who  simply  holds  by  barony, 
or  between  one  who  holds  per  haroniam  and  one  who  holds 
per  servitium  militare?  The  answer  to  any  one  of  these 
questions  should  supply  answers  to  all  the  others;  for  the 
holder  of  a  barony  receives  a  special  writ  of  summons, 
becomes  a  magnate  and  then  a  modern  peer.  Even  those 
who  hold,  not  baronias  integras,  but  per  haroniam,  are 
liable  to  the  summons;  for,  whatever  "barony"  may 
have  been,  it  implied  a  special  jurisdiction  and  a  special 
obligation  to  the  crown  which  conferred  it. 

Now  it  is  obvious  that  the  thousands  who  took  the  Sarum 
oath  to  William  the  Conqueror  did  not  all  hold  baronies, 
and  it  may  be  doubted  whether  any  definition  of  a  barony 
had  yet  been  evolved.  ^  But  they  were  all  the  king's  men, 
his  barons,  and  they  held  their  lands  in  chief  by  military 
service.  The  lands  might  be  great  or  they  might  be  small ; 
the  extent  would  not  affect  the  nature  of  the  tenure,  but 
it  would  affect  the  political  value  and  importance  of  the 
tenant.  Before  long  there  is  a  distinction  between  barons 
and  knights ;  ^  both  hold  by  the  same  military  tenure-in- 
chief,  but  some  are  the  king's  barons,  while  others  are  only 

1  Cf.  Elsynge,  p.  51. 

2  The  term  "  miles  "  or  "  knight  "  is  here  used  in  its  feudal  sense,  in 
which  it  implied  tenure  by  military  service.  Later  on,  in  the  days  of 
chivalry,  it  became  a  nomen  et  honor,  conferring  a  military  and  social 
distinction  without  any  reference  to  the  tenure  of  land,  just  as,  in  still  later 
days,  "peerages"  came  to  be  created  without  any  reference  to  tenure-in- 
chief  of  the  crown.  Barons  were  even  knighted,  so  completely  did  the 
later  idea  supersede  the  feudal  principle. 


THE  FICTION  OF  THE  PEERAGE 


89 


knights.  Later  there  is  a  further  distinction  among  the 
barons  themselves ;  some  are  greater  and  some  are  less,  and 
the  lesser  barons  are  lost  among  the  knights.  By  the  time 
that  the  Modus  is  compiled,  a  rule  has  been  elaborated  by 
the  king's  exchequer  to  distinguish  barons  from  knights; 
the  baron  is  the  holder  of  a  barony,  and  a  barony  is  thirteen 
and  one-third  knights'  fiefs.^  Now  a  knight's  fee  is  calculated 
at  five  hides,  and  if  a  barony  was  thirteen  and  a  third  times 
as  much,  it  was  two-thirds  of  a  hundred  hides.  It  is 
merely  a  guess  that  such  an  extent  of  land  may  have 
entitled  a  barony  to  be  regarded  as  a  private  hundred 
possessing  the  jurisdiction  usually  connected  with  that  unit 
of  organization.  But  it  does  not  appear  entirely  fanciful  to 
conjecture  that  the  individual  holder  of  extensive  lands  was 
regarded  as  being  entitled  to  special  immunities,  such  as 
the  right  to  exclude  the  sheriff  from  his  barony,  and  exemp- 
tion for  himself  and  his  tenants  from  attendance  at  the  shire 
court,  just  as  individual  boroughs  in  later  times  achieved 
the  status  of  counties.  These  and  greater  privileges  had 
been  granted  to  the  earlier  "  honours,"  but  from  1176,  when 
Henry  II  insisted  that  no  "honour"  should  exclude  the  royal 
judges,  there  is  said  to  have  been  little  distinction  between 
an  "  honour  "  and  a  barony;  and  it  is  probable  that  these 
two  kinds  of  *' liberty "  or  "franchise"  approximated. 
For  baronies  tended  to  be  reduced  in  number  and  increased 
in  size  and  dignity.  Some  fell  into  abeyance  between 
co-heiresses;  others  were  accumulated  in  single  hands  by 
marriage  and  inheritance.  The  process  which  concentrated 
five  earldoms  in  the  hands  of  Thomas  of  Lancaster  operated 
also  in  the  case  of  baronies. 

Now,  while  the  grant  of  immunity  from  the  shire  court 
would  not  prevent  the  baron  from  attending  if  he  chose, 
frequent  complaints  in  the  thirteenth  century  of  the  difficulty 
of  holding  shire  courts  owing  to  the  number  of  "  liberties  " 
granted  by  the  king  ^  indicate  that  voluntary  attendance 

1  Stubbs,  Charters,  1900,  p.  503-     ..  ,    -,     ^  ^  r    /i  •„  .^^q    f>,Av 

2  In  the  "  PetitioA  of  the  Barons,"  presented  at  Oxford  1^/258^  they 
complain  of  the  difficulty  of  taking  grand  assizes  ^^^.f  ^  i^^;^s%J^^ttack 
exemptions  granted  to  knights  by  the  kmg  (§  28),  while  they  (§17)  attack 
the  sheriffs  for  requiring  the  personal  attendance  of  the  earls  and  barons. 


90  THE  EVOLUTION  OF  PARLIAMENT 

was  rare ;  and  a  rough  division  of  labour  and  liability  seems 
to  have  been  in  practice  established.  Lesser  barons,  who 
had  to  attend  the  shire  court,  were  only  summoned  by  a 
general  writ  to  Westminster,  the  practical  effect  of  which 
was  probably  a  licence  to  stay  away,  and  afterwards  they 
were  permitted  to  excuse  themselves  by  sending  a  couple 
of  representatives.  But. the  greater  barons,  who  escaped 
the  duties  of  the  shire  court,  were  at  least  liable  to  a  special 
writ  of  summons  to  parliament ;  and  it  is  probable  that  the 
divergence  between  knights  and  barons  which  had  so  powerful 
an  effect  upon  the  organization  and  growth  of  parliament, 
had  its  root  in  an  earlier  separation  in  the  shires.  The 
barons  held  aloof  from  the  local  business  of  the  people,  while 
the  knights  busied  themselves  with  its  conduct ;  and  habits 
of  co-operation  and  of  management  contracted  in  the  shires 
were  perpetuated  in  the  national  business  of  parliament. 

Whatever  its  cause  and  method  of  operation,  this  dis- 
crimination between  greater  and  lesser  barons  effected  a 
change  in  the  magnum  concilium.  If  that  name  is  properly 
applied  to  the  concourse  on  Salisbury  Plain,  the  adjective 
clearly  applies  to  the  numbers  who  attended,  and  not  to 
their  individual  greatness.  For  baron  at  first  means  nothing 
but  *'  man  " ;  and  haron  et  femme  is  the  regular  Norman- 
French  for  "  man  and  wife."  But  in  process  of  time  the 
magnum  concilium  became  a  small  gathering  of  great  men 
rather  than  a  great  gathering  of  small  men.  Greatness, 
not  tenure-in-chief,  constitutes  the  right  or  the  liability  to  a 
special  writ  of  summons  to  the  magnum  concilium,  which  in 
the  reigns  of  Henry  III  and  Edward  II  seems  to  have  been 
a  council  of  magnates.  It  is  significant  that  during  the 
interval  of  Edward  I's  strong  rule,  the  adjective  disappears 
from  the  council.  His  council  is  a  royal  and  not  an  oligarchic 
council;  its  personnel  depends  upon  royal  writs  and  not 
\  upon  feudal  privilege,  and  attendance  is  a  matter  of  obliga- 
^^tion  and  not  of  right.  But  the  idea  of  right  has  grown  up 
in  resistance  to  the  centrahzing  policy  of  Henry  II,  the  tyranny 
of  John,  and  the  alien  misgovernment  of  Henry  III;  and 
it  is  only  for  a  time  that  Edward  I  can  check  the  aristocratic 
claims  of  the  greater  barons  to  limit  the  royal  authority 


THE  FICTION  OF  THE  PEERAGE  gi 

and  participate  in  the  control  of  national  affairs.  The 
contest  centres  round  the  council,  its  composition,  and  its 
powers.  Is  it  to  be  a  council  of  magnates  based  on  baronial) 
rights,  or  a  council  of  royal  advisers  dependent  upon  thej 
crown  ?  This  is  the  issue  between  Edward  II  and  Thoma/ 
of  Lancaster,  and  it  is  during  that  struggle  that  peerage 
makes  its  debut  as  a  constitutional  force  in  pariiament. 

Naturally  it  sought  to  base  itself  upon  precedent,  and  the 
judicium  parium  of  Magna  Carta  formed  a  considerable  part 
of  the  political  stock-in-trade  of  the  baronial  party.  They 
appealed  to  it  as  to  fundamental  law,  which  bound  the  high 
court  of  parliament  itself;  a  judgement  or  act  which  con- 
travened Magna  Carta  was  regarded  as  ipso  facto  void.^  But 
every  political  party  falsifies  history  in  its  appeal  to  precedent, 
and  the  judicium  parium  of  Magna  Carta  was  magnified 
and  transformed  under  the  stress  of  political  exigencies  into 
a  new  political  principle.  Its  germ  may  no  doubt  be  found 
in  Magna  Carta,  and  even  in  1215  there  may  have  been  more 
in  the  minds  of  the  barons  who  talked  about  judgement  by 
peers  than  its  purely  legal  application.  Without  plunging 
into  the  vortex  of  the  discussion,  which  has  vexed  courts  of 
law  as  well  as  historians,  about  the  meaning  of  vel  in 
the  famous  phrase  of  Magna  Carta, ^  per  judicium  parium 
suorum  vel  per  legem  terrcB,  we  may  perhaps  indicate  a  pre- 
ference for  the  disjunctive  interpretation,  and  hold  that  in 
the  minds  of  the  barons  there  was  a  clear  and  important 
antithesis  between  lex  terrce — ^the  custom  of  the  country — 
and  judicium  parium — a  more  or  less  novel  royal  expedient 
or  baronial  safeguard.^    Henry  II  had  invented  or  applied 

1  Edward  I's  Confivmatio  Cartarum  declared  void  all  future  judgements 
against  Magna  Carta,  and  the  declaration  was  repeated  in  Stat.  42  Ed.  Ill, 

*^' 2  Ci  McKechnie,  Magna  Carta,  pp.  442-3;  Vernon  Harcourt,  p.  224; 
Pollock  and  Maitland,  i.  152  n.  It  may  not  be  presumptuous  to  remark 
that  vel  is  always  disjunctive,  but  that  sometimes  it  differentiates  things 
and  sometimes  only  words.  That  does  not,  however,  help  us  with  l^dictum 
parium  vel  lex  term,  because  the  whole  dispute  is  whether  those  are  two 
different  things  or  merely  two  descriptions  of  the  same.  „,^.,Vni;,r 

8  While  lex  is  the  custom  of  the  country,  a  ludtciurn  is  a  particular 
sentence  or   "doom,"   and    "  doom  "is    perhaps  the  best  translation 
doomsday  is  the  day  of  judgement.     The  ordeal  and  tnal  by  battle  were 
partsfof  the  lex,  but  the  result  of  any  particular  ordeal  or  combat  would 
be  a  'judicium. 


92  THE  EVOLUTION  OF  PARLIAMENT 

to  England  a  number  of  new-fangled  legal  methods  which 
were  certainly  no  part  of  the  customary  law  of  the  land; 
and  one  at  least  of  the  motives  of  Magna  Carta  was  to  protect 
the  barons  against  the  abuse,  if  not  also  against  the  use  of 
Henry  II's  expedients.  The  ancient  laws  or  customs  the 
barons  did  not  impugn,  but  they  would  have  none  of  these 
novel  judicia  except  with  their  consent.  The  crown  was 
not  to  be  free  to  devise  judicial  methods  and  enforce  them- 
by  judges  who  were  no  better  than  royal  servants ;  if  there 
were  to  be  innovations,  the  barons  must  consent  to  their 
institution  or  at  least  participate  in  their  application. 

A  case  in  the  reign  of  Edward  I  may  illustrate  their 
point  of  view.  A  baron  objected  to  the  king's  judges  that 
they  were  not  proceeding  against  him  fer  legem  terrcB  ;  the 
judges  admitted  the  fact,  but  thought  it  no  bar  to  their 
action.  They  were  proceeding  by  royal  mandate,  per  speciale 
mandatum  regis,  we  might  say  in  later  legal  language.  ^  It 
was  to  bar  such  proceedings  that  the  principle  of  judicium 
parium  expanded  with  the  growth  of  royal  jurisdiction. 
The  crown  was  ever  pronouncing  new  decisions,  and  chancery 
devising  novel  writs. ^  These  things  were  no  part  of  the 
lex ;  they  were  therefore  not  to  be  done  except  per  judicium 
parium.  Even  acts  of  parliament  were  not  leges,  but 
the  judicia  of  a  court.  The  law  was  begetting  politics, 
and  the  privilege  of  peerage  overflowed  from  the  one  sphere 
into  the  other.  The  invasion  was  all  the  more  easy  because 
the  frontiers  had  not  yet  been  fixed ;  a  resolution  of  the  king 
in  council  to  make  war  on  a  vassal  was  a  judicium  super 
eum  ire?  and  every  legislative  act  was  also  a  judicium. 
Judicium  parium  was  a  principle  that  might  be  applied  in 
every  sphere  of  public  affairs,  and  the  veto  of  the  house  of 
lords  has  a  pedigree  stretching  back  to  Magna  Carta. 

But  the  more  widely  the  principle  was  extended,  the 

^  Vernon  Harcourt,  pp.  281,  301 ;  but  the  phrase  is  used  in  Edward  Ill's 
reign  {Rot.  Pari.,  ii.  266). 

2  Maitland  {Collected  Papers,  ii.  155)  mentions  the  existence  of  471 
different  kinds  of  original  writs  in  Edward  I's  reign,  compared  with  fifty 
or  sixty  in  1227. 

3  Vernon  Harcourt,  p.  248. 


THE  FICTION  OF  THE  PEERAGE  93 

narrower  grew  the  class  which  benefited  by  its  operation.   The 
pares  of  Magna  Carta  may  have  been  few  compared  with  the' 
total  population,  but  they  were  a  multitude  compared  withj 
the  peers  by  whom  and  in  whose  interests  Edward  II  was  to^ 
be  deprived  of  royal  authority.     The  reign  of  Edward  I  wasi; 
treated  as  an  interlude,  and  the  barons  reverted  to  the  inter- 
regnum of  the  Barons'  Wars.     But  they  had  no  Simon  de 
Montfort  among  them,  and  showed  no  desire  to  share  their 
counsels  with  knights  of  the  shire  or  burgesses.     They  had, 
however,  some  notions  of  their  own  which  had  not  occurred 
to  authors  of  the  Provisions  of  Oxford;    and  it  is  at  this 
crisis  that  we  first  read  about  peers  "  de  la  terre  "  used  in 
a  sense  somewhat  nearer  to  its  modern  signification  than  the 
pares  of  Magna  Carta. 

The  phrase  is  stated  to  have  first  been  used  in  1322  in  the 
charges  of  *'  the  prelates,  earls,  and  barons,  and  the  other 
peers  of  the  land  and  the  commons  of  the  realm  "  against 
the  two  Despencers.i  But  there  is  an  earlier  instance  of 
the  use  of  the  phrase  in  the  indenture  drawn  up  between 
Edward  II  and  Lancaster  at  Leake  in  August  13 18. 2  This 
agreement  provides  for  the  attendance  at  council  of  two 
bishops,  one  earl,  a  baron,  and  a  banneret  of  Lancaster's 
household,  on  Lancaster's  behalf,  and  stipulates  that  if  the 
earl's  representatives  disagreed  with  any  resolution  of  the 
council,  soil  tenuz  por  Client  et  adresce  en  parlement  par 
agard  des  pieres,  et  totes  choses  convenables  soient  redressez 
par  eux.  The  later  reference  lays  a  good  deal  of  stress  on 
the  pieres  de  la  terre  ;  the  phrase  occurs  five  times  in  the 
document.  Judgement  by  peers  is  no  longer  a  mere  protection 
against  the  legal  innovations  of  the  crown;  it  has  been^ 
erected  into  the  principle  that  they  are  to  judge  the  acts^/ 
of  the  crown  and  its  ministers.  Impeachment  already  loorn^' 
upon  the  horizon. 

1  Pike,  p.  157,  citing  the  Close  Roll  of  14  Edward  II,  membrane  14, 
printed  in  Statutes  of  the  Realm,  i.  181-4.  The  fourteenth  year  of 
Edward  II,  however,  ran  from  July  1320  to  July  1321. 

2  Rot.  Pari,  i.  453-5.  The  entry  runs  "  escrit  a  Leek  le  ix  ]Our  d  Augst 
I'an  du  regne  du  dit  Roi  Edward  duzieme,"  and  it  was  read  and  examined 
at  the  York  parliament  of  Oct.  131 8.  The  entry  is  printed  in  the  Rot.  Pari. 
from  the  Close  Roll  of  12  Ed.  II,  m.  22  dorso. 


94  THE  EVOLUTION  OF  PARLIAMENT 

if  This  use  of  the  word  "  peers  "  in  the  reign  of  Edward  II 
I  is  Hmited  to  the  Lancastrians;  no  royal  clerk  or  royalist 
partisan  seems  to  employ  it,  and  it  obviously  expresses 
a  political  theory  held  by  the  opposition.  Its  adoption 
by  Lancaster  in  the  proceedings  against  the  Despencers 
recalls  the  insistence  by  the  Lords  Ordainers  upon  the 
"  baronage  "  in  their  attacks  upon  Gaveston.^  Peerage  is  a 
principle  used  to  support  the  magnates  in  resistance  to  the 
crown,  and  par  agard  des  fieres  takes  in  1318-22  the  place 
of  the  par  agard  del  baronage  of  131 1.  It  was  naturally 
selected  by  the  opposition  because  the  "  peers  "  had  grown 
to  be  independent  of  the  king;  they  could  hardly  pretend 
to  independence  so  long  as  they  were  tenants-at-will  of  the 
crown  and  called  themselves  barons.  But  hereditary  ten- 
dencies culminating  in  strict  entails  had  rendered  the  lords 
of  the  land  secure ;  and  lords,  seigneurs,  barons,  and  peers 
of  the  land  come  to  be  used  as  synonymous  terms  to  express 
a  landed  aristocracy  striving  for  political  supremacy.  Their 
claims  reach  their  high-water  mark  in  the  ordinances  of 
ffi^ii.  The  king  is  not  to  leave  the  realm,  declare  war, 
y  appoint  judges  or  ministers,  keepers  of  castles  or  wardens 
11  of  ports  without  the  assent  of  his  baronage ;  and  the  royal 
authority  is  put  in  commission  among  the  "  peers." 

But  we  are  still  some  distance  from  the  modern  peerage, 
and  even  when  clerks  of  chancery  are  constrained  to  write 
of  peers  in  Edward  Ill's  reign  they  leave  a  very  vague  im- 
pression of  the  meaning  of  the  word.  That  it  was  not  the 
modern  meaning  is  clear  from  the  most  cursory  inspection 
of  the  "  Rolls  of  Parliaments  "  wherein  the  clerk  often  writes 
of  "  prelates,  earls,  barons,  and  their  peers,"  but  never  limits 
the  peers  to  prelates,  earls,  and  barons.^  The  vagueness 
of  the  phrase  is  illustrated  by  the  fact  that  it  was  possible 
for  a  not  unlearned  clerk  of  the  parliaments  in  the  seventeenth 
century  to  maintain  that  the  peers  of  the  realm  were  not 
the  earls  or  barons,  but  the  bannerets,  who  were  not  infre- 

1  Rot.  Pari.,  i.  281  £F. 

2  Cf.  Rot.  Pari.,  ii.  53  :  "  Lesqueux  countes,  barouns,  et  peres,"  and 
"  peres,  countes,  et  barouns." 


THE  FICTION  OF   THE  PEERAGE  95 

quently  summoned  by  special  writs  to  parliament.^  This 
introduces  an  unwarrantable  precision  into  the  terminology 
of  the  fourteenth  century,  but  there  is  no  doubt  that  ban- 
nerets were  included  in  the  category  of  those  who  are 
described  as  peers  of  the  prelates,  earls,  and  barons.  Earls 
and  barons  were  peers,  but  others  were  peers  as  well,^  and 
the  clearest  indication  of  who  these  others  were  is  afforded 
by  the  grant,  in  January  i339-40>  of  a  tenth  to  the  king  by 
the  earls  and  barons  for  themselves  and  for  their  peers  of 
the  land  who  hold  by  barony.^  Just  as  in  Anglo-Saxon 
times  there  were  men  who  were  "  thegn worthy  "  without 
being  thegns,  so  in  the  fourteenth  century  there  were  men 
who,  without  being  earls  or  barons,  were  their  peers.  From 
a  passage  in  the  Modus  we  might  infer  that  this  line  of 
peerage  was  determined  by  the  possession  of  thirteen  and 
a  third  knights'  fees ;  *  but  the  inference  would  not  be 
safe.  There  are  instances  of  men  possessing  less  than  a 
single  knight's  fee  being  summoned  by  special  writ  to  parlia- 
ment, and  before  loiig  Richard  II  will  create  peers  by  letters 
patent  without  any  reference  to  the  lands  they  hold.  In 
any  case  this  peerage  constituted  a  liability  rather  than 
a  right;  and  just  as  the  tenure  of  a  ha'porth  of  land,  as 
Bracton  says,^  by  military  tenure  rendered  the  tenant  liable 
to  feudal  incidents,  so  it  rendered  him  liable  to  a  special  writ 
of  summons  to  the  king's  high  court.  It  gave  him  no  right  to 
such  a  summons ;  but  if  it  were  sent,  he  could  not  disobey 
unless  he  could  prove  that  he  held  no  land  per  haroniam.^ 

*  H.  Elsynge,  The  Manner  of  Holding  Parliaments,  ed.  1768,  pp.  43-8,  79. 
Selden  {Judicature  in  Parliaments,  p.  159)  writes  of  earls,  barons,  and 
"baronets"  assembled  in  the  parliament  of  1386;  and  the  roll  of  1513 
has  "every  other  baron,  baronet,  and  baroness"  {Lords'  Journals,  i. 
p.  xxvi.),  where  baronet  seems  to  be  the  eldest  son  of  a  baron.  For  other 
uses  and  the  confusion  of  banneret  and  baronet,  see  A''.  E.  D. 

2  Earls,  barons,  and  peers  are  all  summarily  referred  to  {Rot.  Pari.,  ii. 
53)  as  "  lesdits  peres."  '  Ibid.,  ii.  107. 

*  Stubbs,  Charters,  p.  503  :  "  item  summoneri  et  venire  debent  omnes 
et  singuli  comites  et  barones  et  eorum  pares,  scilicet  illi  qui  habent  .  .  . 
tresdecim  feoda  et  tertiam  partem  unius  feodi  militis."  The  poet  Spenser 
thought  these  pares  of  the  earls  and  barons  were  baronets ;  see  N.  E.  D., 
s.v.  "Baronet."  e  poUock  and  Maitland,  i.  257. 

«  Rot.  Pari.,  ii.  132,  139.  Nevertheless,  recipients  of  special  writs  of 
summons  did  occasionally  claim  exemption  on  the  ground  that  they 
held,  not  a  barony,  but  only  per  baroniam. 


96  THE  EVOLUTION  OF  PARLIAMENT 

There  were,  therefore,  many  peers,  but  not  every  one  who 
called  himself  a  peer  was  called  to  parliament.  Nor  is 
the  word  officially  used  as  a  normal  description  of  those 
who  received  a  special  writ  of  summons.  Its  correct  employ- 
ment is  with  reference  to  judicial  proceedings,  to  trial  by 
peers  of  their  equals.  It  is  then  that  the  peers  most  insist 
on  their  peerage ;  as  peers  they  are  there  in  the  king's  high 
court  for  judicial  purposes  only.  When  political  matters 
are  under  discussion,  it  is  not  as  peers  that  they  act,  but  as 
lords  of  the  council  in  parliament,  and  they  are  described 
as  prelates,  earls,  barons  et  autres  grantz  or  magnates. 
The  king  still  holds  his  court  in  his  council  in  his  parliaments ; 
its  duties  are  multifarious,  and  so  are  the  parts  of  its  members. 
When  they  sit  in  judgement  they  act  as  peers,  whea._they 
advise  the  crown  in  matters  of  administration  they  are 
councillors,  and  in  time  both  these  fimctions  will  be  obscured 
by  their  third  capacity  as  legislators.  This  is  not  the  view 
of  the  "  peers  "  themselves.  In  their  own  eyes  they  are 
peers  above  everything ;  and  in  all  their  petitions,  whatever 
their  purport,  they  call  themselves  "  peers."  They  speak 
of  the  statutes  made  by  the  king,  peers,  and  the  commons ;  ^ 
they  demand  that  the  chancellor  and  the  treasurer  should 
always  be  "  peers."  They  won  in  the  end,  but  it  is  not 
until  after  the  close  of  the  middle  ages  that  "  peers  "  became 
a  regular  term  for  the  lords  in  parliament ;  and  it  never 
became  a  correct  and  exhaustive  description  of  those  who 
sat  in  the  house  of  lords. 

Nor  did  the  use  of  the  term  in  the  least  imply  that  even 
when  trial  of  peers  was  the  business  of  parliament,  any  peer 
had  a  right  to  be  present.  Some  peers  must  participate  in 
order  to  make  the  trial  a  trial  by  peers;  and  presumably 
all  the  "  peers  "  who  had  received  a  special  writ  to  a  parlia- 
ment were  entitled  to  sit  when  parliament  tried  a  peer. 
These  peers  gradually,  too,  asserted  the  principle  that  no 
one  who  was  not  a  peer,  even  though  he  had-  received  a 
<v  special  writ,  was  entitled  to  judge  a  peer.  The  prelates 
ceased  to  take  part  in  judicial  proceedings,  not  so  much 

1  Rot.  Pari.,  ii.  140. 


THE  FICTION   OF  THE:  PEERAGE  97 

perhaps  because  their  "  peerage  "  was  doubtful  as  because 
their  holy  orders  forbade  the  shedding  of  blood;  and  the 
trial  of  peers  in  parliament  was  always  on  capital  charges. 
The  exclusion  of  the  judges,  or  rather  their  reduction  to 
the  position  of  assistant  advisers  without  a  vote,  substanti- 
ated the  old  claim  of  the  barons  that  the  king's  judges 
and  barons  of  the  exchequer  were  not  their  peers  and  could 
not  judge  them.  But  the  old  claim  was  vastly  extended; 
and  the  inferiority  of  the  judges,  admitted  when  the  lords 
sat  to  try  their  peers,  was  also  enforced  by  degrees  when  the 
lords  sat  in  their  other  capacities,  as  a  council  and  as  a  house 
of  parliament.  The  fact  that  the  judges  could  not  perform 
one  of  the  functions  of  the  king's  court  in  his  council  in 
parliaments  was  eventually  held  to  debar  them  from  perform- 
ing the  others ;  and  ultimately  the  principle  that  a  man  should 
only  be  tried  by  his  peers  was  distorted  into  the  notion  that 
peers,  and  peers  only,  could  vote  in  the  house  of  lords.  By 
a  like  perversion  the  trial  of  men  by  their  peers  sometimes 
became  their  trial  by  the  peers.  This  was  not  an  infringe- 
ment of  Magna  Carta,  because  none  of  its  clauses  forbade 
trial  by  one's  superiors.  The  peers'  jurisdiction,  too,  was 
limited  to  crimes  against  Magna  Carta. ^  But  even  with 
this  limitation  their  claim  was  a  usurpation.  It  is  true  that 
in  1330  they  protested  that  as  peers  they  were  not  bound 
to  try  Simon  Burford,  who  was  not  their  peer.  Yet  as  "  judges 
of  the  parliament  "  they,  with  the  assent  of  the  king,  sen- 
tenced him  also  as  a  traitor.^  This,  they  admit,  was  against 
the  law,  and  ultimately  it  was  established  that  the  participa- 
tion of  the  commons  as  the  grand  inquest  of  the  nation  was 
essential  to  the  trial  of  commoners  by  the  peers  and  to  their 
condemnation  by  act  of  attainder.^ 

1  In  1311  the  Ordinances  also  included  the  Confirmation  of  the  Charters 
and  the  Ordinances  themselves  among  the  laws,  the  breach  of  which  was 
to  be  tried  by  the  barons  in  parliament;  and  m  1341  the  P^ers  wanted  to 
include  the  "liberties  of  holy  church  "  and  the  Charter  of  the  Forests 
(Rot.  Pari.,  i.  285,  ii.  126). 

3  fIaftok\''Henry  VII,  p.    18:    "en  le  parlement  le  roy  vou^ 
que  un  tie!  solt  attaint  ^t  perde^ses  .terres,  et  les  -^JJ-^  ^^^Tm^en 
rien  fuit  parle  des  comons.     Purquoi  touts  les  justices  tenent  clerement 
que  ceo  ne  fuit  acte.     Purquoi  il  fuit  restore,     etc. 
H 


98  THE  EVOLUTION  OF  PARLIAMENT 

We  are  still,  however,  far  from  a  house  of  lords  in  the  reign 
of  Edward  III,  and  the  lords  of  parliament  are  still  for  the 
most  part  lords  of  the  council.  But  the  reign  of  Edward  II 
had  permanent  effects  upon  the  constitution,  and  Edward 
III  never  reduced  the  magnates  to  their  insignificance  under 
Edward  I.  The  "  Rolls  "  are  replete  with  references  to  the 
magnum  concilium,  which  has  entrenched  itself  in  the  heart 
of  parliament,  and  the  "  council "  which  the  king  holds  in 
his  parliaments  is  now  the  magnum  concilium  ;  the  camera 
magni  concilii  has  become  the  "  parliament  chamber."  The 
process  is  very  obscure,  but  one  or  two  points  emerge.  It 
is  clear  that  the  magnates  have  mastered  the  council.  In 
1315  parliamentary  pleas  are  lield  coram  magno  concilio,  and 
answers  are  given  coram  rege  et  magno  concilio,  instead  of 
coram  concilio,  as  in  the  reign  of  Edward  I.  In  the  follow- 
ing year  the  chancellor,  judges,  and  other  members  of  the 
council  report  to  the  king  quod  non  audehant  dictum  negotium 
diffinire  nee  eidem  domino  regi  super  hoc  consulere  sine 
assensu  magnatum  de  regno  propter  difficuUatem  et  raritatem 
negotii  supradicti ;  and  they  recommended  its  reference  to 
either  a  parliament  or  a  convocatio  magnatum  de  regno. ^ 
"  Great  councils  "  continued  to  be  summoned  for  centuries 
after  the  organization  of  the  Model  Parliament,  and  they 
were  a  favourite  expedient  with  the  Lancastrians. ^  But  here 
we  are  concerned  with  "the  king's  great  council  in  parha- 
ment"^  which  gave  its  name  to  the  "parliament  chamber," 
and  eventually  became  the  house  of  lords. 

That  it  is  still  primarily  a  king's  council  is  clear  from  the 
facts  that'  no  principle  upon  which  a  "  peer  "  could  claim 
a  right  to  be  summoned  had  been  established.  Indeed, 
there  seems  to  be  no  instance  in  the  middle  ages  of  any  one 
claiming  a  right  to  be  summoned  at  all;   and  it  cannot  be 

1  Rot.  Pari.,  i.  354a. 

*  See  Nicolas,  Proc.  of  Privy  Council,  I.  17,  102,  144,  156,  ii.  85-9,  156,  iv. 
105,  185-6,  225,  V.  64,  108,  vi.  214,  290,  298,  333,  339.  Their  object  was 
often  probouleutic,  such  as  to  decide  whether  or  not  a  parliament  should 
be  called.  But  in  the  fifteenth  century  they  were  not  confined  to  mag- 
nates ;  about  half  the  prelates,  earls,  and  barons  summoned  to  parliament 
were  usually  summoned  to  a  great  council,  but  sometimes  they  were 
reinforced  by  half  a  dozen  knights  or  esquires  from  each  county  {ibid., 
i.  156).       _ 

8  Ibid.,  IV.  185. 


THE  FICTION  OF  THE  PEERAGE  99 

too  often  emphasized  that  even  to-day  peerage  does  not 
in  itself  constitute  a  right  to  sit  and  vote  in  the  house  of 
lords ;  it  has  been  held  to  constitute  a  right  to  a  summons, 
but  it  is  the  writ  of  summons  that  constitutes  the  title  to 
sit  and  vote,  and  in  the  middle  ages  the  issue  of  this  writ 
was  a  matter  within  the  discretion  of  the  crown.  The 
reason  why  some  abbots  sit  and  others  do  not  is  simply 
that  it  has  become  the  custom  of  chancery  to  summon  one 
and  not  the  other.  The  abbot  who  is  not  summoned  never 
dreams  of  claiming  a  summons ;  he  has  no  right  to  a  summons, 
and  a  baron  is  in  the  same  position.  A  mere  glance  at  the 
number  of  those  who  were  summoned  at  different  times 
will  show  that  the  receipt  of  a  writ  depended  upon  the  dis- 
cretion or  caprice  of  the  crown  and  not  upon  hereditary 
right. ^  To  the  parliament  of  1295  Edward  I  summoned 
forty-one  barons,  to  that  of  1300  he  summoned  ninety-nine. 
To  the  parliament  of  1321  Edward  II  summoned  ninety,  to 
that  of  1322  he  summoned  fifty-two.  To  the  parHament 
of  1333-4  Edward  III  summoned  sixty-three  barons,  to 
that  of  1346-7  he  summoned  only  thirty,  but  to  that 
of  1347-8  he  summoned  fifty-six.  No  natural  cause 
like  that  of  death  will  explain  these  violent  fluctuations; 
and  the  barons  who  received  a  special  writ  of  summons 
under  Edward  I  and  Edward  II  were  not  reduced  to  half 
their  number  by  extinction  of  their  heirs.  Whatever  the 
house  of  lords  may,  in  defiance  of  history,  have  made  law 
in  the  nineteenth  century,  there  was  no  idea  in  the  fourteenth 
or  fifteenth  that  a  baron  summoned  to  one  parliament  must 
needs  be  called  to  another,  or  that  a  writ  of  summons  created 
a  "  peerage  "  transmissible  by  descent.  A  peerage,  indeed, 
is  not  a  term  which  a  medieval  lawyer  would  have  under- 
stood ;  2  he  knew  that  an  earldom  meant  an  office,  the  tenure 
of  which  always  involved  a  special  writ  of  summons  to  parlia- 

»  Palgrave's  published  Parliamentary  Writs  only  cover  the  reigns  of 
Edward  I  and  Edward  II,  but  his  MS.  lists,  Preserved  in  the  Public 
Record  Office,  go  on  into  the  fifteenth  century;  cf  Maitland,  Memoranda, 
p.  xxxv;  and  Pike,  pp.  96-100.  For  later  lists  of  "peers  summoned  see 
47th  Report  of  the  Deputy-Keeper  of  the  Records  PP- 79-83- 

«  MuiSay's  iV.  E.  D.  gives  no  instance  earlier  than  1671  of  the  use  of 
the  word  to  indicate  a  dignity ;  nor  is  "the  peerage," meanmg  the  body  of 
peers,  found  before  1454' 


loo  THE  EVOLUTION  OF  PARLIAMENT 

ment ;  he  believed  that  a  barony  meant  the  tenure -in-chief 
of  an  amount  of  land,  or  more  probably  rights  of  jurisdic- 
tion, if  not  an  office,  which  involved  at  least  a  liability  to 
that  summons.  But  in  the  reign  of  Charles  II  it  was  decided 
that  the  .tenure  of  a  barony  did  not  involve  the  possession 
of  a  "  peerage  "  or  a  right  to  a  special  writ  of  summons  to 
parliament ;  ^  and  assuredly  no  such  right  existed  in  the 
middle  ages.  There  were  many  heirs  in  Edward  Ill's  reign 
of  barons  summoned  by  special  writ  to  parliament  under 
Edward  I  or  Edward  II,  who  received  no  writ  of  summons 
themselves  and  never  thought  of  claiming  it  as  a  right. ^ 
The  law  of  "  peerage  "  is  a  modern  monument  of  legal  fiction. 
At  the  end  of  the  middle  ages  Fortescue  talks  enough  about 
lords  spiritual  and  temporal,  but  he  never  calls  them  peers, 
and  the  word  does  not  occur  in  the  "  Rolls  of  Parliaments  " 
for  the  reign  of  Henry  VII,  or  in  the  "  Journals  "  for  several 
succeeding  reigns.  Nor  does  Sir  Thomas  Smith,  who  wrote 
under  Elizabeth,  use  the  term.  Peerage  had  been  a  juridical 
concept  in  Magna  Carta ;  under  Edward  II  it  was  turned  by  a 
limited  class  to  political  purposes ;  but  the  vogue  of  hereditary 
peerage  as  a  foundation  of  the  constitution  is  a  modern 
growth  born  of  antagonism  to  Stuart  and  then  to  democratic 
principles.  To  Fortescue  the  barons  are  not  an  independent 
"  peerage,"  but  councillors  of  the  crown,  bound  to  give 
advice  when  asked,  but  not  entitled  to  enforce  it. 

It  is  easy,  too,  to  exaggerate  the  meaning  of  natus  in 
Fortescue's  statement  that  the  lords  are  consiliarii  nati 
to  the  king ;  for  he  expressly  includes  lords  spiritual  as  well 
as  temporal,  and  every  archbishop  of  Canterbury  and 
of  York  was  legatus  natus  of  the  pope.  It  is  clear  that  a 
lord  spiritual  was  not  a  councillor  of  the  crown,  nor  the 
archbishop  legate  of  the  pope,  by  hereditary  right;  and 
Fortescue's  statement  that   the  lords  are  councillors  "  by 

*  Cruise,  Dignities,  2nd  ed.,  p.  66;  the  question  was  not,  however, 
finally  settled  until  the  Berkeley  peerage  case  in  1861 ;  see  below,  p.  307  w. 

2  For  instance  the  Ughtreds  {D.  N.  B.,  Iviii.  i6fl),  Umfravilles  {D.  N.  B., 
Iviii.  236),  Dynhams  (G.  E.  C.'s  Complete  Peerage,  ed.  Gibbs,  iv.  371-9). 
Not  a  few  of  these  "  peers  "  of  modern  theory  acted  as  sheriffs  or  sat  in 
the  house  of  commons. 


THE  FICTION  OF  THE' 'PEERAGE, ^,  :*.-_ toy, 

reason  of  their  baronies  and  estates,"  clearly  implies  that 
they  are  councillors  in  virtue  of  their  feudal  relation  to  the 
king  and  not  of  their  blood  relation  to  their  ancestors. 
The  barony,  indeed,  has  become  hereditary,  but  the  bishopric 
has  not,  and  the  bishop  or  archbishop  is  just  as  much 
consiliarius  natus  or  legatus  natus  as  the  baron.  The  right 
or  the  duty  to  give  counsel  seems  to  be  innate  in  the 
dignity  rather  than  in  the  individual  or  in  the  blood; 
the  spiritual  lord  ceased  to  be  consiliarius  natus  when  he 
resigned  his  bishopric  and  the  temporal  lord  when  he  lost 
his  barony.  Ralph  de  Monthermer  became  consiliarius  natus 
when  he  married  the  Countess  of  Gloucester  and  ceased  to 
be  such  when  her  son  came  of  age. 

Nevertheless,  the  barons,  who  in  the  reign  of  Henry  III 
had  merely  claimed  to  be  the  king's  '*  natural "  councillors, 
as  distinguished  from  unnatural  aliens,^  begin  in  time  to 
claim,  as  "  hereditary "  councillors,  an  indefeasible  right 
to  a  seat  in  parliament.  The  mere  routine  of  chancery  clerks 
tended  to  stereotype  a  list  of  barons  to  whom  a  special  writ 
was  sent.  It  was  easier  for  officials  to  address  the  writs 
as  before  than  to  pick  and  choose.  They  could  hardly 
vary  the  list  of  barons  or  abbots,  whom  it  was  usual  to 
summon,  on  their  own  authority;  and  even  the  strongest 
kings  developed  a  respect  for  chancery  forms.  Chancery, 
too,  was  further  removed  by  the  growth  of  the  privy  seal 
from  the  caprice  of  the  crown ;  and  when  a  Tudor  required 
the  absence  of  a  lord  from  parliament,  it  was  secured,  not 
by  withholding  the  writ  of  summons  issued  under  the  great 
seal  of  chancery,  but  by  a  more  intimate  injunction,  under 
the  privy  seal  or  signet,  not  to  obey  it.  From  the  third 
Edward  to  the  third  Richard,  however,  kings  were  concerned 
to  secure  the  presence  rather  than  the  absence  of  their 
councillors  in  parliament.  A  crowded  council  betokened  a 
vigorous  government,  and  the  lack  of  Lancastrian  governance 
was  betrayed  by  the  absence  of  lords  from  the  council  in 
and  out  of  parliament.     Richard  II  imposed  heavy  fines  on 

1  An  alien,  even  though  he  held  an  English  earldom,  was  not  a  con- 
siliarius natus  of  the  crown ;  see  below,  p.  273  n. 


IG2       .        THE  EVOLUTION  OF  PARLIAMENT 

absentees/  and  the  dwindling  number  of  barons  summoned 
to  parliament  was  due  to  the  inability  of  the  crown  to  enforce, 
and  to  the  reluctance  of  the  lords  to  meet,  the  obhgation  of 
suit  and  service  at  the  king's  high  court.  In  1433  the 
crown  could  only  extort  even  from  its  chief  councillors  an 
undertaking  to  attend  the  council  non  tamen  continue  sed 
saltern  tempore  curiae.^  Their  ambition  was  not  to  sit  as 
lords  of  council  or  of  parhament  at  Westminster,  but  to 
rule  as  princes  in  the  provinces;  a  special  writ  of  summons 
to  parliament  added  nothing  to  the  prestige  of  a  Neville  or 
a  Percy,  and  threatened  an  irksome  distraction  from  more 
local  and  more  congenial  occupations. 

It  was  not  for  the  writs  of  summons  attached  thereunto 
that  these  lords  of  misrule  sought  dukedoms,  marquisates, 
earldoms,  viscountcies,  and  baronies,  but  for  the  lands,  pen- 
sions, and  other  grants  which  accompanied  the  conferment 
of  these  dignities.^  A  seat  in  parliament  only  became  an 
object  of  ambition  when  parliament  itself  became  a  seat  of 
authority;  and  in  the  fifteenth  century  a  writ  of  summons 
was  merely  a  disagreeable  incident  to  baronial  dignity.  It 
was,  however,  becoming  hereditary  because  strict  entails 
had  made  baronial  tenure  hereditary,  and  writs  of  summons 
had  become  attached  by  custom  to  greater  baronies.  This 
association  seemed  to  the  crown  to  portend  a  baronial 
tyranny ;  it  tended  to  restrict  the  king's  choice  of  counsellors, 
because  no  one  could  be  disseised  of  his  barony  save  by  the 
judgement  of  his  peers,  and  the  personnel  of  the  king's  great 
council  was  thus  determined  by  them  and  not  by  the  sovereign 
they  were  to  advise.*  The  more  rigid  the  custom  grew  of 
sending  writs  to  the  earls  and  greater  barons,  the  less  scope 
there  was  for  the  crown  to  summon  others  outside  the  limited 


1  Pike,  p.  237.  2  2Jo^  Pari,  iv.  446. 

^  It   was   the   rule   then   for   aspirants   to   receive   and   not   to   make 
payments  for  their  dignities. 

'  *  The  loss  of  control  over  the  great  council  was  one  of  the  causes  which 
led  kings  to  develop  a  privy  council  immune  from  the  limitations  of  baronial 
and  hereditary  tenure,  in  somewhat  the  same  way  as  the  independence 
of  chancery,  due  to  the  growth  of  tradition  and  custom,  led  them  to 
devise  the  more  intimate  and  personal  machinery  of  the  privy  seal  and 
signet. 


THE  FICTION  OF   THE  PEERAGE  103 

circle  of  territorial  magnates.  Richard  II  was  naturally 
the  first  to  find  this  Hmitation  intolerable,  and  it  was  prob- 
ably to  escape  it  that  he  began  the  practice  of  creating  barons 
and  other  peers  by  patent  without  reference  to  the  lands  they 
held.  This  practice  saved  the  crown  from  a  danger  similar 
to  that  which  was  threatened  by  the  peerage  bill  of  1719 ; 
it  could  create  peers  without  being  limited  in  its  choice  to 
the  holders  of  great  estates. 

■  But  the  association  of  land  tenure,  and  consequently  of 
the  hereditary  principle,  with  peerage  had  been  too  long 
established  to  be  eliminated;  the  baron  created  by  patent 
was  usually  granted  lands  to  support  his  dignity,  and  even 
to-day,  when  he  is  less  fortunate,  he  commonly  takes  a 
territorial  title.  Nor  did  the  creation  of  peers  bring  last- 
ing advantage  to  the  crown :  the  new  peer  might  be  sub- 
servient to  his  creator,  but  his  descendants  had  no  such 
attachment  to  his  creator's  successors.  The  patents  of 
Richard  II  and  his  successors  asserted  the  principle  of  heredity 
against  the  imphcations  of  the  writ  of  summons,  for  they 
were  made  out  to  the  recipient  and  his  heirs  male,  whereas 
writs  of  summons  ignored  the  recipient's  heirs  altogether, 
and  the  transmission  to  heirs  general  has  been  a  matter  of 
judicial  fiction.  But  the  notion  of  councillorship  is  empha- 
sized by  the  limitation  of  patents  to  heirs  male.  Lands  might 
descend  to  females,  but  only  males  could  counsel  the  crown. 
Nor  is  it  certain  that  the  creation  of  a  barony,  viscounty, 
marquisate,  or  dukedom  by  letters  patent  committed  the 
king,  and  still  less  his  successors,  to  the  perennial  issue  of 
parliamentary  writs  of  summons  to  the  newly-created  peer 
and  to  his  heirs.  Kings  were  jealous  of  circumscribing  their 
discretion ;  even  a  statute,  it  was  contended  as  late  as  the 
seventeenth  century,  made  by  one  king  did  not  bind  his 
successors.!  Letters  patent  were  certainly  not  more  binding 
than  a  statute,  and  they  contained  nothing  about  writs  of 

1  Prothero,  Select  Documents,  ed.  1898    p    340.     f^'^^f^^'^t^ll^l 
merit  in  Bates'  case  :   "  The  statute  (45  Ed.  Ill   c.  .4)  ^^tf^f^s  on^^^^^^^ 
king  himself,  and  shall  not  bind  his  successors  for  it  is  a ^prmcipal  part  01 
the  crown  of  England,  which  the  king  cannot  diminish. 


I04  THE  EVOLUTION  OF  PARLIAMENT 

summons,  the  right  to  which  was  by  later  generations  read 
into  the  patent  of  creation. 

These  patents  did,  however,  create  hereditary  dignities  ^ 
to  which  a  writ  of  summons  to  padiament  came  in  common 
practice  to  be  attached ;  and  the  development  or  perversion 
of  the  king's  council  in  parliament  into  an  hereditary  house 
of  lords  is  mysteriously  connected  with  the  growth  of 
heraldry,  which  characterized  the  decline  of  the  middle  ages. 
The  incorporation  of  the  College  of  Arms  by  Richard  III, 
the  passion  for  pedigrees,  the  heralds'  visitations,  and  the 
granting  of  arms  (when  they  were  losing  their  practical 
value)  were  all  manifestations  of  a  social  evolution,  the 
political  and  constitutional  effects  of  which  have  not  been 
properly  explored.  There  is  no  mention  of  Garter  king-of- 
arms  ^  in  any  version  of  the  Modus  Tenendi  Parliameittum, 
not  even  in  that  which  the  clerk  of  the  parliaments  prefixed 
to  the  Journal  for  1 510 ;  but  he  figures  largely  in  the  pictures 
of  parliament  which  date  from  the  sixteenth  century,  and 
his  functions  were  important.  He  preceded  the  newly- 
created  peer  when  he  came  to  take  his  seat,  and  presented 
his  letters  patent ;  ^  and  Burghley  once  moved  Garter's 
appointment  to  a  committee  of  lords  to  determine  questions 
of  precedence.*  Pedigrees,  too,  were  recorded  on  the  first 
writs  of  summons  issued  to  peers  on  succession,  and  came  to 
be  regarded  as  an  indefeasible  title  to  the  writ.  The  obse- 
quiousness of  the  lords  in  parliament  after  the  Wars  of  the 
Roses  and  the  reduction  of  the  prelates  by  Henry  VHI 
blinded  the  Tudors  to  the  growth  of  a  strictly  hereditary 
peerage  which  ultimately  turned  the  tables  on  the  crown. 

The  vogue  of  the  phrase  "  hereditary  peerage  "  involves, 

*  I  have  some  doubts  about  the  correctness  of  this  customary  phrase- 
ology. The  dignity  was  created  by  the  crown,  and  the  letters  patent  were, 
like  proclamations,  merely  the  evidence  of  the  fact  and  not  the  fact  itself. 
The  act  was,  moreover,  often  done  by  the  crown  in  parliament ;  and  it 
seems  to  have  been  merely  an  accident  that  these  acts  did  not  permanently 
become  acts  of  parliament. 

2  First  created,  it  is  said,  by  Henry  V. 
'  Elsynge,  pp.  6,  8,  97-8. 

*  Townshend,  Historical  Collections,  p.  83.  The  intrusion  of  Garter 
king  into  the  high  court  of  parliament  is  a  portent  of  the  subversion  of 
the  king's  great  council  in  parliament  by  the  modem  peerage. 


THE  FICTION  OF  THE  PEERAGE  105 

however,  some  confusion  of  thought.  The  essence  of  the 
house  of  lords  is  not  that  it  is  based  upon  the  principle  of 
heredity  like  the  old  nobility  of  the  continent,  but  upon  the 
principle  of  primogeniture,  which  as  the  foundation  of  a 
legislative  chamber  was  peculiar  to  England.  There  is  a  great 
deal  of  physiological  truth  underlying  the  current  phrases 
about  *'good  old  stock,"  "in  the  blood,"  and  so  forth; 
but  hereditary  virtues  have  a  trick  of  eluding  eldest  sons. 
There  have  been  many  illustrious  sons  of  illustrious  sires 
in  English  history,  but  they  have  rarely  been  the  eldest. 
Queen  Elizabeth  w^as  served  by  two  great  Cecils,  and  George 
III  by  two  great  Pitts ;  but  the  first  Earl  of  Salisbury  was 
not  the  eldest  son  of  the  great  Lord  Burghley,  nor  was 
William  Pitt  of  the  Earl  of  Chatham.  Three  of  the  five 
Tudors  were  among  the  greatest  of  English  sovereigns,  but 
not  one  of  the  three  was  the  eldest  son  or  eldest  daughter  of 
a  king.  A  house  selected  from  the  sons  of  peers  would  have 
been  an  abler  body  than  the  house  of  eldest  sons,  and  more 
hereditary  virtue  has  enriched  the  house  of  commons  than 
the  house  of  lords.  Primogeniture  was  given  its  peculiar 
and  exclusive  privilege  in  order  to  keep  fiefs  intact,  and  not 
from  any  belief  in  its  efiicacy  in  the  transmission  of  wisdom. 
The  special  writ  of  summons  became  attached  to  great 
hereditary  baronies  because  the  consent  of  their  holders 
was  essential  to  the  financial  success  of  the  king's  proposals 
in  parhamcnt;  and  the  principle  of  primogeniture  was 
communicated  from  the  barony  to  the  special  writ  of 
summons. 

The  growth  of  this  principle  led  to  the  depression  of  the 
simple  councillors  ill  pariiament,  and  as  early  as  Edward 
Ill's  reign  the  judges  were  denied  a  vote,  though  not  a  voice, 
in  the  high  court  of  parliament  in  which  they  sat.  They 
become  assessors  or  advisers ;  and  while  Sir  Thomas  More, 
as  chancellor,  presided  over  the  lords'  deliberations,  par- 
ticipated in  their  discussions,  and  adjourned  their  sessions 
from  day  to  day,  he  had  no  vote  in  their  determmations. 
It  was  not,  however,  until  comparatively  modern  times  that 
the  hereditary  element  became  predominant  in  the  house 


io6  THE  EVOLUTION  OF  PARLIAMENT 

of  lords.  Down  to  the  dissolution  of  the  monasteries  the 
non-hereditary  spiritual  peers  constituted  a  majority;  and 
until  a  considerably  later  period  the  bishops  and  newly- 
created  peers  outnumbered  those  who  owed  their  writs  of 
summons  to  heredity.  There  were  sixty  temporal  peers 
when  James  I  ascended  the  English  throne;  but  he  created 
fifty-four,  and  the  bishops  numbered  twenty-six;  and  the 
eldest  sons  of  peers  had  barely  attained  a  majority  in  the 
house  of  lords  when  the  Long  Parhament  abolished  it  as  a 
dangerous  and  unnecessary  institution.  The  house  of  lords, 
as  it  is  known  to-day,  is  the  outcome  of  the  Restoration. 


CHAPTER  VI 

THE  GROWTH  OF  THE  HOUSE  OF  COMMONS 

Although  the  "  commons  "  were  the  last  of  the  elements 
to  arrive  in  the  thirteenth-century  parliament,  they  have 
suffered  less  subsequent  change  of  position  than  the  crown, 
the  judges,  or  the  lords.  The  presence  of  the  crown  has, 
except  in  theory,  been  limited  to  ceremonial  occasions ;  most 
of  the  judges  of  the  high  court  have  been  excluded  altogether ; 
and  the  lords  of  the  council  in  parliament  have  been  converted 
into  an  hereditary  peerage.  The  '*  commons,"  however,  have 
remained  in  many  essentials  what  they  were  in  the  reign  of 
Edward  III,  when  they  shared  with  the  crown  the  privilege 
of  being  one  of  the  two  indispensable  elements  in  a  valid 
parliament.^  Then,  as  now,  the  essence  of  parHament  was 
parley  between  crown  and  commons,  the  government 
and  the  governed.  There  were  other  factors  than  the 
crown  in  the  government,  and  other  "  estates  "  than  the 
commons  among  the  governed ;  but  they  were  minor  ingred- 
ients. The  distinguishing  feature  of  the  English  parliament  \ 
is  the  junction  it  made  between  government  and  the  people.  \ 
Not  that  the  house  of  conmions  was  ever  that  house  of  the 
common  people  which  it  is  sometimes  supposed  to  have  been. 
For  "  commons  "  means  "  communes  '* ;  and  while  "  com- 
munes "  have  commonly  been  popular  organizations,  the 
term  might  in  the  thirteenth  and  fourteenth  centuries  be 
applied  to  any  association  or  confederacy. 

Common  action  was,  however,  commoner  among  ^  the  j 
common  people,  because  they  had  greater  need  than  indi-  | 
vidualistic  barons  of  union  for  self-protection,  and  it  was  - 

1  Modus  Tenendi  Parliamentum  in  Stubbs's  Select  Charters,  p.  512. 

107 


io8  THE  EVOLUTION  OF  PARLIAMENT 

only  under  the  pressure  of  exceptional  royal  tyranny  that 
barons  borrowed  the  methods  of  association  from  the  humbler 
townsfolk  who  first  put  the  fear  of  "  communism  "  into  the 
hearts  of  privileged  classes.  A  '*  commune,"  wrote  a  horri- 
fied monk  of  St.  Swithun's  when  John,  in  the  absence  of 
Richard  I,  granted  common  self-government  to  London,  est 
tumor  plehis,  timor  regni,  tepor  saccrdotii}  which  might  be 
flippantly  rendered  in  the  vernacular,  "  a  commune  swells 
the  people's  head,  terrifies  royalty,  and  puts  the  clergy  in  a 
stew."  It  was  a  popular  conspiracy,  and  the  chronicler 
doubtless  had  in  mind  those  formidable  communes  of  northern 
Italy  which  had  humbled  the  pride  of  an  emperor  at  Legnano. 
Monarchy  in  England  was  made  of  stouter  stuff  than  the  Holy 
Roman  Empire ;  but,  if  Richard  of  Devizes  could  have  fore- 
seen that  "  commune  of  communes,"  as  the  house  of  com- 
mons was  called  two  centuries  later,  his  prophetic  soul 
might  also  have  foreboded  1649  ^^^^l  1688,  when  the  commons 
became  indeed  a  terror  to  royalty,  and  perhaps  other  occa- 
sions, both  later  and  earlier,  when  they  "  put  the  clergy  in 
a  stew." 

But  the  **  communes  "  or  "  communitates,"  which  gave 
their  name  to  the  house  of  commons,  were  lawful  and  orderly, 
comprehensive,  but  not  democratic  associations.     They  wore 
simply  the  shires  or  counties  of  England,  and  the  full  county 
courts  in  which  the  knights  of  the  shires  were  chosen  did  not 
include  the  *'  common  "  people.     For  villeins  were  not  legally  , 
qualified  to  perform  the  judicial  functions  for  which  the  i 
cdurts  were  held.     They  did  not  attend  as  "  suitors  of  the  ' 
court,"  and  they  were  only  represented  in  the  sense  in  which 
the  lord  of  the  manor  was  held  to  represent  his  tenants 
without  any  choice  or  election  on  their  part.     Even  tlie 
freeholders  who  possessed  less  than  a  40.9.  freehold  were 
excused  in  the  reign  of  Edward  I ;  ^  and  excuse  from  atten- 
dance to  unpaid  and  unpopular  duties  meant  absence.     The 

1  Richard  of  Devizes,  p.  53. 

2  Rot.  Pari.,  i.  116;  the  statute  only  applied  to  the  county  courts, 
and  not  to  the  assizes  held  by  the  king's  justices  in  cities,  boroughs,  and 
other  market  towns.  The  exemption  of  1294  became  the  exclusion 
of  1430. 


THE   GROWTH  OF  THE  HOUSE  OF   COMMONS     109 

duty  was  even  attached  to  particular  tenements  rather  than 
to  their  holders,  and  instances  are  known  in  which  suit  at 
the  county  court  was  imposed  as  a  condition  of  the  lease  or 
grant  of  land.^ 

This  suit  at  the  county  court  was,  of  course,  required  for 
the  administration  of  justice,  and  it  is  important  to  remember 
that  not  only  the  members  of  parliament,  but  the  electors 
as  well,  were  primarily  jurors,  and  only  incidentally  electors. 
Justice  was  the  regular  monthly  work  of  the  county  court, 
the  election  of  members  of  parliament  was  an  occasional 
addition  to  the  duties  of  those  who  were  already  present 
to  exercise  jurisdiction.  The  house  of  commons,  as  well  asf 
the  house  of  lords,  grew  out  of  the  legal  system,  and^ 
the  politics  of  parliament  were  the  outcome  of  its  law.  It' 
was  in  this  legal  atmosphere  that  representation  had  its 
birth,  and  the  county  court  js  the  foundation  of  the  hous^ 
of  commons.  Representation  was  not  the  offspring  of  demo- 1 -^ 
cfatiC  thCbry,  but  an  incident  of  the  feudal  system.^  Suit  I 
and  service  were  due  from  all ;  but,  we  are  told  in  the  Leges 
Henrici  Primi,  if  the  lord  or  his  steward  will  go  to  the  county 
court,  his  presence  will  "  acquit  "  the  tenants  on  his  domain.^ 
If  neither  lord  nor  steward  is  present,  there  must  come  the 
priest  and  the  reeve,  and  four  best  men  of  the  township  on 
behalf  of  their  fellows.  The  boon  of  representation  is  not 
in  election  to  serve,  but  in  the  licence  to  stay  away ;  it  consists 
in  the"  immunity  obtained  through  the  vicarious  service  of 
others,  and  centuries  elapse  before  the  service  becomes  a 
privilege  and  the  burden  an  object  of  envy  and  a  source 
of'pridc.  In  the  twelfth  and  thirteenth  centuries  the  diffi- 
culty is  to  enforce  the  attendance  of  representatives ;  medieval 
"  liberties  "  were  nearly  fatal  to  representation  and  to  the 
county  courts,  for  the  most  cherished  liberty  was  that 
which  excused  the  lord  and  his  tenants  from  the  hundred 
and  county  courts,  and  gave  them  jurisdiction  of  their 
own. 

But,  scanty  and  reluctant  though  the  attendance  may 

1  Maitland,  Collected  Papers,  i.  458-  '  See  below,  p.  153- 

3  Stubbs,  Select  Charters,  ed.  1900,  p.  105. 


no  THE  EVOLUTION  OF  PARLIAMENT 

have  been,  tl^  court  wa^Jhe  legal  embodiment  of  the  shire ; 
everything  it  Hid  was  the  deed  of  the  shire,  and  except 
through  it  the  shire  did  nothing.  Its  verdicts  were  the  final 
verdicts  of  the  shire ;  ^  there  were  no  imperative  mandates 
from  below,  no  limitation  of  powers,  and  no  referendum; 
its  representative  character  was  complete.  It  was  the  com- 
munitas,  and  not  a  mere  "  estate."  Bishops,  earls,  and 
barons,  as  well  as  knights,  were  expected  to  attend  in  person 
or  provide  their  representatives,^  and  all  were  "  peers  of 
the  county."  ^  "  Peers  of  the  realm  "  did,  indeed,  secure 
exemption  after  a  while — ^not  as  a  class,  but  as  individual 
recipients  of  royal  grants  and  charters — and  the  ground  of 
their  exemption  was  perhaps  their  liability  to  a  special 
summons  to  more  arduous  business  at  Westminster.  But 
the  exemption  was  not  a  prohibition;  they  could  attend  if 
they  liked,  and  it  is  probable  that  the  magnates  who  in  later 
centuries  intervened  in  the  nomination  of  members  of  parlia- 
ment in  the  shire  courts,  were  not  exceeding  their  legal 
rights.  It  was  only  a  resolution  of  the  house  of  commons 
that  forbade  a  peer  to  concern  himself  with  parliamentary 
elections. 

Here  in  the  shire  courts  was  acquired  that  habit  of  common 
action,  and  here  was  laid  that  foundation  of  public  opinion, 
upon  which  the  house  of  commons  was  based.  It  may  be 
that  undue  stress  has  been  laid  upon  the  fact  that,  while 
Simon  de  Montfort  summoned  the  citizens  and  burgesses 
to  his  parliament  by  writs  addressed  direct  to  the  cities  and 
boroughs,  Edward  I  sent  the  writs  through  the  sheriffs  and 
had  the  returns  made  in  the  shire  courts.  It  was,  indeed, 
more  than  a  question  of  mere  machinery,  for  the  common 
return  of  knights  of  the  shire  and  burgesses  in  the  same 
shire  courts  emphasized  a  community  which  was  retained 
in  the  house  of  commons.  But  the  links  were  forged  at  an 
earlier  period,  and  were  made  of  stouter  stuff  than  sheriffs' 

'  Maitland,  Lectures  on  Constitutional  History,  p.  43. 

'  Leges  Henrici  Primi,  Stubbs,  Select  Charters,  p.  105. 

^  This  phrase  occurs  frequently  in  the  fourteenth  century,  and  probably 
means  the  "  judges  "  of  the  county  court  as  defined  in  the  Leges  Henrici 
Primi,  c.  xxix.,  Stubbs,  Select  Charters,  p.  106. 


THE  GROWTH  OF   THE  HOUSE  OF  COMMONS     iii 

writs.  The  knights  who  failed  to  obtain  baronial  exemption 
from  attendance  at  the  shire  courts  recouped  themselves  by 
managing  the  business  of  their  humbler  neighbours  in  the 
shires.  It  was  they  who  prepared  the  agenda  for  the  fiscal 
and  judicial  visits  of  the  justices  in  eyre,  consulted  with  the 
townsfolk  and  small  freeholders  in  attendance  at  the  court, 
and  negotiated  their  affairs.  They  had  their  reward  in  a 
leadership,  lost  by  the  peers  of  the  realm  through  their 
privileged  abstention  from  the  county  courts,  and  won  by 
the  knights  who  continued  at  Westminster  the  popular 
co-operation  they  had  learnt  in  the  shires.     ~ 

Nor  is  there  any  reason  to  suppose  that  this  presentation 
and  conduct  of  popular  business  by  the  knights  was  limited  to 
the  county  courts  in  the  thirteenth  century  before  the  formal 
election  of  members  to  parliaments  or  great  councils.  Henry 
II  had  thrown  open  the  doors  of  the  curia  regis  to  suitors  of  all 
sorts — save  villeins  pleading  against  their  lords ;  and  nothing 
in  the  records  of  Edward  Fs  parliaments  suggests  that  the 
regular  invitation  to  suitors,  with  which  a  parliament  always 
began,  was  a  novelty.  Suitors  had  been  in  the  habit  of\ 
coming  to  Westminster  from  the  county  courts  before  thej 
days  of  Simon  de  Montfort  and  Edward  I ;  and  it  is  almost 
certain  that  knights  from  the  shire  did  a  good  deal  of  repre- 
sentative legal  business  at  Westminster  before  they  were 
summoned  thither  by  writs.  The  writ  to  the  sheriff,  the 
election  in  the  shire  court,  and  the  indenture  between  the 
sheriff  and  the  elected  knights  merely  made  formal  and 
regular  the  spontaneous  habit  of  representation  of  counties 
by  knights  at  the  king's  high  court ;  and  the  intervention  of 
chancery,  with  its  formal  writs  and  returns,  was,  no  doubt, 
intended  to  render  the  words  and  deeds  of  the  representa- 
tives more  binding  upon  their  constituents.  They  were  to 
come,  not  merely  with  such  varying  powers  as  different 
counties  might  at  different  times  choose  to  give  them,  but 
with  full  power  to  commit  all  the  counties  alike  to  approval 
of  whatever  proposals  the  king  and  his  council  might  lay 
before  them;  and  in  Edward  Ts  parliamentary  writs  there 
was  implied,  not  only  a  theory  of  government  by  consent, 


112  THE   EVOLUTION   OF  PARLIAMENT 

but  also  the  authority  of  representatives  and  the  tyranny  of 
majorities. 

Similarly  there  are  grounds  for  believing  that  cities  and 
boroughs  had  been  represented  at  Westminster  before  Simon 
de  Mont  fort  issued  his  writs/  and  that  the  petitions  from 
towns  which  abound  in  the  earliest  "  Rolls  of  Parliaments  " 
had  not  sprung  up  in  a  generation ;  and  again,  all  that  Simon 
did  was  to  systematize,  and  perhaps  turn  to  political  and 
party  purposes,  a  habit  of  representation  that  had  long 
obtained  in  the  redress  of  grievances  and  the  administration 
of  justice.  The  itinerant  justices  did  not  exhaust  the  judicial 
business  of  the  counties  or  the  judicial  powers  of  the  king's 
court.  There  was  always  the  reserve  at  Westminster;  to 
tap.  justice  at  its  source  the  counties  had  to  appear  by  their 
representatives  in  the  curia  regis,  and  the  original  purpose 
of  parliament,  as  declared  on  countless  occasions  through- 
out the  fourteenth  century,  was  by  means  of  a  joint  session 
of  the  courts  to  redress  delays  and  determine  cases  in  which 
the  judges  were  in  doubt. 

Out  of  this  attendance  of  representatives  of  the  shires  at 
the  curia  regis  grew  in  time  the  share  of  the,  house  of  com- 
mons in  the  judicial  work  of  the  high  court  of  parliament. 
They  were  not,  it  is  true,  judges  in  parliament,  but  they  were 
the  grand  jury  of  the  nation ;  the  k.-rds  could  try  no  commoner 
except  on  their  impeachment,  and  their  presence  was  essential 
at  various  stages  in  the  proceedings.  The  separate  repre- 
sentation of  cities  and  boroughs  was,  no  doubt,  due  to  the 
varying  degrees  of  immunity  from  the  jurisdiction  of  the 
shire  courts  which  they  enjoyed.  But  no  city  save  London 
seems  to  have  secured  total  exemption  from  the  shire  system 
before  the  fourteenth  century,  and  there  must  therefore  have 
been  a  local  basis  of  co-operation  between  town  and  county, 
which  facilitated  co-operation  between  their  representatives 
in  parhamcnt.  The  co-operation  was  not,  however,  complete 
at  first;  as  late  as  the  reign  of  Edward  III  knights  and 
burgesses  act  independently,  and  seemed  not  unUkely  to  form 

1  Rotiili  Chartarum,  Record  Coram.,  pp.  57,  65:  Tike,  p.  337. 


THE   GROWTH  OF   THE  HOUSE  OF  COMMONS    113 

separate  "  estates."  ^   Their  ultimate  amalgamation  was  due 
to  the  exigencies  of  parliamentary  organization. 

The  house  of  commons  was  not,  in  fact,  created  either  by 
Simon  de  Montfort  or  by  Edward  I.  Representatives  of 
shires,  cities,  and  boroughs  attended  the  king's  court  at  West-'> 
minster  for  judicial  and  financial  purposes  before  either  Simon  f- 
or  Edward  issued  their  famous  writs.  They  came,  indeed, 
sporadically  and  not  as  a  body  of  men ;  but  their  organization  ' 
into  a  *'  house  "  of  commons  required  a  great  deal  more  < 
than  the  simultaneous  summons  to  shires  and  boroughs 
issued  by  Simon  and  Edward.  It  grew  up  during  the  four- 
teenth century,  and  its  growth  is  slow  and  obscure.  The 
"Rolls  of  Parliaments"  tell  us  little  about  the  house  of 
commons,  because  they  are  only  concerned  with  what  is 
done  in  parliament,  and  technically  the  discussions  and  other 
domestic  business  of  the  house  of  commons  are  not  trans- 
acted in  parliament  at  all.  Down  to  this  day  the  commons' 
debates  are  beyond  the  ken  of  the  clerk  of  the  parUaments, 
an  official  who  sits  in  what  has  come  to  be  called  the  house 
of  lords.  In  the  fourteenth  century  they  were  held  in  the^., 
refectory  or  the  chapter  house  of  the  abbey  of  Westminster ; 
and  as  late  as  the  reign  of  Henry  VII  the  commons  only 
"  appear "  in  parHament  when  they  come  to  hear  the 
opening  speech,  to  present  their  Speaker,^  or  to  announce 
by  his  mouth  the  decisions  they  have  reached  on  the  business 
submitted  for  their  approval.  Consequently  it  is  on  these 
occasions  alone  that  they  figure  in  the  "  Rolls  of  Parlia- 
ments "  kept  by  the  clerk  of  the  parHaments,  who  sits  in  the 
parliament  chamber  of  the  palace.  It  is  true  that  early  in 
Edward  Ill's  reign  an  "  under  clerk  of  the  parliaments  " 
has  been  told  off  to  attend  to  the  domestic  business  of  the 
commons,  and  ultimately  he  becomes  the  clerk  of  the  house 
of  commons.     But  his  duties  were  apparently  to  draft  the     . 

1  As  late  as  1523  they  took  separate  action  {Hall,  ^^''f  ?»;^  P-  657). 

2  The  obscurity  which  covers  the  origin  of  the  Speakership  and  ear^y 
development  of  the  privileges  of  the  commons  is  due  ^  the  total  absence 
of  any^  record  of  the  domestic  proceedings  of  the  ho"£fjf^„^P."l"'°^\ie 
the  chapter  house  until  its  Journals  begin  ^^^^547.   JJ^e^^t"?i^^^^^^ 
'•  Rolls  "  only  relate  to  decisions  after  they  have  been  '^^^^^^^^J.^^^^^^^^ 
and  are  reported  in  parliament  by  the  Speaker  (see  History,  *u.  33  5h 

I 


114  THE  EVOLUTION  OF  PARLIAMENT 

common  petitions  of  the  house,  and  possibly  to  keep  some 
record  of  attendance,  upon  which  the  exchequer  founded 
its  writs  de  expensis,  entitHng  members  to  recover  their 
wages  from  their  constituents.  No  other  trace  of  his 
activity  has  been  found ;  it  is  improbable  that  any  Journal 
of  the  house  of  commons  was  kept  before  1547.^  If  it 
was,  it  has  been  lost,  and  in  any  case  its  contents  were 
not  incorporated  in  the  **  Rolls,"  which  ignore  proceedings 
taken  outside  the  parliament  chamber. 

Another  cause  of  obscurity  in  the  history  of  the  house  of 
commons  arises  from  the  indeterminate  character  of    the  . 
\    terminology  employed  in  the  "  Rolls."     By  the  end  of  the 
*   fourteenth   century  the   term   communitates   or   communes 
f   implies  both  the  knights  of  the  shires  and  the  representa- 
'   tives  of  the  cities  and  boroughs;  but  this  usage  expresses 
the  result  of  a  gradual  amalgamation,  and  before  1350  the 
word  is  used  in   different  senses.     Le  commun   is  used  in 
1258  of  a  clique  of  barons;  in  1259  communilas  bachclericB 
des<:ribes  a  "  cave  "  of  aristocratic  forwards.     In  1340  les 
communes  de  la  terre  is  the  phrase  employed  to  distinguish 
the  knights  of  the  shires  from  the  representatives  of  the 
cities  and  boroughs.     In   1343  we  have  les   chivalers  des 
countez  et  com^nunes,  where  communes  seems  to  mean  the  town 
members  as  distinct  from  the  knights  of  the  shire ;  but  in 
the  next  line  we  have  frelatz,  grantz,  et  communes,  where 
both  are  apparently  included  in  the  common  designation, 
and   later   on    the  same   page  we  -have,  les    chivalers    des 
countees  et  les  autres  communes.     Similarly  in  1332  we  have 
a  distinction  between  les  chivalers  des  countez  and  les  gentz 
du  commun.'^ 
\       Beneath  this  confusion  of  terminology  it  is  not  possible 
to  detect  any  real  house  of  commons  consisting  of  a  com- 
bination of  knights  and  burgesses.     It  should  be  remembered 
that  many  knights  of  the  shires  were  not  chivalers,  and 

*  Sec  Trans.  Royal  Hist.  Soc,  3rd  Ser.,  viii.  27. 

2  Rot.  Pari.,  ii.  65a,  112,  136;  cf.  Tout,  Edward  II,  p.  80.  In  1352  we 
have  reference  to  "  longe  trete  et  deliberation  eues  par  les  coniTtinnes 
ove  [avec]  la  communaltie,  et  I'avis  d'aeciins  grantz  a  eux  envoiez  " 
(Rot.  Pari.,  ii.  2376). 


THE  GROWTH  OF   THE  HOUSE   OF  COMMONS     115 

that  many  barons  summoned  by  special  writ  were.  There 
was  no  social  designation  to  distinguish  the  lesser  from  the 
greater  baron;  either  might  be  a  chivaler,  either  was  a 
baron,  and  either  was  nobilis — a  quality  attributed  to 
knights  as  late  as  the  fifteenth  and  sixteenth  centuries. 
Out  of  a  list  of  twenty-four  knights  present  at  the  parliament 
of  1305,  ten  had  received  a  special  baronial  summons.  The 
sole  distinction  between  knights  and  barons  was  drawn  by 
royal  writ  of  summons,  and  it  is  significant  that  when,  at  the 
parliament  of  Lincoln  in  1 301,  we  find  the  earliest  notable 
instance  of  the  parliamentary  activity  of  a  knight  of  the 
shire,  that  action  is  taken  by  Henry  of  Keighley,  as  the 
mouthpiece  of  the  barons,  and  not  as  a  leader  of  the  commons. 
It  is  probable  that  for  a  generation  after  1295  the  influence 
of  the  "communes"  in  parliament  was  simply  that  of  the\ 
lesser  tenants  in  chivalry.  What  general  legislation  there  is 
affects  them  only,  and  they  act  as  a  knightly  estate  rather 
than  as  a  house  of  commons. 

Nor  must  their  parliamentary  importance  be  exaggerated. 
There  is  hardly  a  parliament  of  the  first  half  of  the  fourteenth 
century  the  opening  of  which  had  not  to  be  postponed  owing 
to  defective  attendance.     But  the  defect  is  always  due  to.the 
absence  of  prelates  and  magnates,  and  never  to  that  of 
knights  or  burgesses;  and  it  is  more  probable  that  such 
absence  was  not  regarded  as  a  fatal  defect  in  a  parliament 
than  that  it  never  occurred.     The  summons  of  knights  of^, 
the  shire  and  burgesses  does  not  prove  their  attendance  ;\ 
and  when,  later  on,  measures  are  taken  to  compel  attendance 
at  parliament,   they  are  apphed  to  magnates  long  before 
they  are  enforced  upon  knights  of  the  shire  or  burgesses. 
The  summons  was  all  that  wa^ needed;  accordmg  to  the 
Modus  a  total  absence  of  magnates  did  not  invalidate  a 
parliament,  provided  they  had  been  summoned;  and  even 
Magna  Carta  had  laid  it  down  that  the  absence  of  those  who 
abstained  was  not  to  frustrate  the  counsel  of  those  who^ 
attended.     Absence,  following  upon  due  and  lawful  summons,  , 
gave  consent  as  effectively  as  silence  on  the  part  of  those  who 
were  present.    In  the  parlLament  of  September  1332  a  tenth 


ii6  THE  EVOLUTION   OF  PARLIAMENT 

was  imposed  on   cities  and  boroughs,  although   the  only 
consent  recorded  is  that  of  the  prelates,  earls,  barons,  other 
magnates  and  knights  of  the  shire  who  granted  a  fifteenth ;  ^ 
and,  although  the  election  of  burgesses  to  that  parliament 
is  recorded  in  the  Official  Return,  no  trace  of  their  presence 
is  found  in  the  "  Rolls."     That  some- burgesses  as  well  as 
some  knights  of  the  shire  did  attend  this  and  other  parlia- 
ments, their  presence  in  which  is  not  mentioned  in  the 
**  Rolls,"  is  probable.     But  it  seems  clear  from  the  writs  de 
expensis  that  election  did  not  mean  attendance,  and  that 
the  large  number  of  elections  recorded  in  the  Official  Return 
of  Members  of  Parliament  may  convey  an  exaggerated  im- 
pression of  the  importance  of  the  commons  in  parliament.^. 
The  treatment  of  the  commons  by  the  crown  during  the 
'  first  years  of  Edward  Ill's  reign  was  not,  in  fact,  calculated 
to  encourage  attendance.      In  March   1332,   for  instance, 
the  commons  met  on  Monday  the  17th ;  five  days  later  they 
were  told  that  their  petitions  had  neither  been  received  nor 
answered,  and  that  they  might  go  home,  the  king  promising 
to  call  another  parliament  to  deal  with  such  business.     This 
he  did  in  September ;  but  as  soon  as  money  had  been  granted, 
the  other  estates,  though  not  the  burgesses,  were  asked  to 
advise  the  king  whether  he  should  deal  with  petitions  or  go 
north  to  deal  with  the  Scots.     He  was  advised  to  deal  with 
the  Scots,  and  the  commons  had  to  be  content  with  a  gracious 
promise  to  deal  with  their  petitions  at  a  convenient  season. 
The  third  parliament  for  that  year  met  at  York  on  December 
4,  but  only  five  prelates  attended;  the  requisite  lords  and 
lawyers  failed  to  appear,  petitions  could  not  be  answered,  and 
parliament  was  prorogued  until  January,  when  again  it  met  at 
York.^    A  journey  to  Westminster  was  then  a  matter  »f 
weeks ;  a  journey  to  York  was  worse  for  most  of  the  members. 
Cornwall  returned  ten  members  to  the  parliament  of  March, 
and  fourteen  to  that  of  September;  but  it  is  not  surprising 
that  only  two  of  the  ten  were  found  among  the  fourteen,  or 

»  Rot.  Pari.,  ii.  66. 

2  Cf.  Tout,  Edward  II,  X914,  pp.  89-90,  104.     See  below.  Chapter  xvi. 

3  Rot.  Pari.,  ii.  64  £f. 


THE  GROWTH  OF  THE  HOUSE  OF  COMMONS     117 

that  no  returns  at  all  have  been  discovered  from  Cornwall 
to  the  parliaments  of  December  and  January.^    It  needed! 
the  Hundred  Years'  war,  with  jts  financial  embarrassments,  L 
to  render  the  crown  more  respectful  and  the  commons  readier  f 
to  make  better  use  of  the  parliamentary  organization  which  ^ 
had  been  slowly  developing  since  the  days  of  Edward  I. 

No  precise  dates  can  be  assigned  to  the  steps  in  that  pro- 
gress, and  it  has  been  further  obscured  by  antedating  the 
definiteness  of  parliamentary  institutions.     All  talk  about 
two  houses  of  parliament  in  the  fourteenth  century  is  clearly 
beside  the  mark,  and  it  can  hardly  be  too  often  repeated  that  \ 
the  earliest  reference  to  a  "  house  of  lords  "  occurs  in  the) 
reign  of  Henry  VHI.     Edward  I  was  as  ignorant  of  twor' 
^houses  of  parliament  as  he  was  of  three  estates,  and  his\ 
■  Model  Parliament  consisted  of  a  single  chamber.  ^  Nor  can ' 
"we  obtain  an  accurate  view  of  Edward's  parliaments  so  long', 
as  we  regard  them  as  being  primarily  legislative  assemblies,/' 
The  king  summoned  them  to  secure  supplies,  and  members 
attended  to  seek   redress  for   their   grievances.     But   the 
petitions  they  presented  would j)ractically  all  be  now  called 
private  bills;    they  were  not  collective  petitions  and  werej 
not  preferred  by  corporate  action.     Of  the  five  hundred 
petitions  presented  at  the  parliament  of  1305,  five  only  deal 
with  matters  of  pubHc   concern,  and  of  these  five   three 
affect  feudal  tenants-in-chief  alone.     Ninety-nine  hundredths  \ 
of  the  petitions  are  individual  requests  for  legal  relief,  for  | 
royal  favour,  or  for  redress  of  private  wrongs,  and  they    ^ 
called  for  no  common  action  among  the  petitioners.^ 

An  appreciation  of  the  significance  of  this  fact  is  essential 
to  ^y  understanding  of  the  Edwardine  parliament.    There  1 
could  be  no  house  of  commons  so  long  as  this  condition  \ 
continued,  for  such  an  institution  could  only  grow  out  of  \ 
common  action.     Again,  this  fact  alone  would  indicate  that 

1  Official  Return  of  Members  of  Parliament,  s.aa.  u^»r.A'<. 

2  This  computation  was  made  from  the  petitions  for  1305  In  Maitland  s 
Memoranda  de  Parliamento.  Palgrave  in  giving  evidence  before  the  Com- 
mittee on  Public  Petitions  in  1832  ^.^^ched  a  similar  conclusion  f^^^^^^^ 
knowledge  of  the  whole  medieval  period :  -  I  should  state  that  mnety-mne 
out  of  every  hundred  petitions  presented  by  individuals  related  to  indi- 
vidual grievances  "  [Pari.  Papers,  1833,  xu.  20). 


ii8  THE  EVOLUTION  OF  PARLIAMENT 

the  function  of  parliaments  was  primarily  judicial;  for 
individual  wrongs  are  always  the  proper  subject  of  judicial 
action,  and  even  to-day,  when  parliament  deals  with  private 
bills,  we  commonly  speak  of  it  as  acting  in  a  judicial  or  semi- 
judicial  capacity ;  the  committee  to  which  they  stand  referred 
hears  counsel  on  both  sides,  and  compels  parties  to  prove 
their  locus  standi,  as  in  a  court  of  law,  before  they  will  be 
heard.^  On  the  other  hand,  common  petitions,  or,  as  we  now 
call  them,  public  bills,  are  matters  for  political  and  legislative 
\  action.  So  long  as  parliament  had  mainly  to  deal  with 
i^individual  petitions,  it  remained  predominantly  a  court  of 
law :  as  soon  as  common  petitions  supersede  individual 
petitions,  parliament  becomes  a  legislative  body.  No  rigid 
line  can  be  drawn — ^notwithstanding  the  constitution  of  the 
United  States — ^between  judicial  and  legislative  action,  and 
judges  make  law  to-day  in  the  United  States  as  well  as  in 
Great  Britain,  the  difference  being  that  in  England  it  is 
historically  their  proper  function,  and  legislation  grew  out 
of  adjudication.  It  follows  that  no  definite  line  can  be 
drawn  between  individual  and  common  petitions,  and  no 
date  assigned  to  the  supersession  of  the  former  by  the  latter 
as  the  main  business  of  parliaments. 

But  it  is  obvious  that  this  transition  is  an  important, 
perhaps  the  most  important,  factor  in  the  development  and 
organization  of  parliaments.  The  growth  of  the  common 
petition  was  the  natural  result  of  the  collection  of  knights 
and  burgesses  in  a  common  gathering  at  Westminster  and  of 
\  the  collective  answer  the  crown  required  to  its  requests  for 
money.  Members  from  divers  constituencies  could  hardly 
fail  to  fall  into  a  habit  of  comparing  notes,  possibly  at  first 
in  informal  conversation  and  afterwards  in  more  regular  ways, 
with  respect  to  the  petitions  with  which  they  were  charged ; 
and  sooner  or  later  they  would  be  impressed  by  the  extent  to 
which  these  individual  petitions  had  a  common  foundation  in 
the  normal  behaviour  or  misbehaviour  of  the  ministers  of  the 

1  See  Erskine  May,  Pari.  Practice,  Bk.  iii.  The  procedure  of  the  houses 
on  private  bills  is  totally  uuintcUigiblc  except  on  the  ground  that  parliament 
is  a  court  of  law. 


THE  GROWTH  OF   THE  HOUSE  OF  COMMONS     119 

king,  judges,  sheriffs,  eschaetors  and  so  forth.     Before  long  - 
it  must  have  occurred  to  the  shrewder  among  these  early 
parliamentarians  that  it  would  be  wise  to  pool  their  petitions 
and  their  powers  of  pressure  upon  the  crown.     It  was  an  j 
elementary  form  of  union,  for  which  the  crown  itself  had 
paved  the  way  by  demanding  common  grants  of  aids  and ; 
subsidies   from   the   commons   at   W^tminster   instead  of' 
demanding  them  from  individual  "  communitates  "  through- j 
out  the  country;  and  almost  certainly  it  was  one  of  those V 
constitutional  developments  of  the  reign  of  Edward  II,  the 
importance  of  which  has  been  neglected  in  the  attention 
devoted  to  the  more  sensational  episodes  of  the  struggle 
between  the  king  and  his  barons. ^ 

At  any  rate,  from  the  parliament  of  November  1325 

'  onwards  the  "  Rolls  "  begin  to  draw  a  distinction  between 
petitions  presented  pur  tote  la  commune  and  alice  petitiones 
in  parliamento ;  and,  but  for  the  difficulty  of  determining 
the  exact  meaning  of  the  word  communitas,  it  might  be 
possible  to  date  the  beginning  of  "  common "  petitions 
some  years  earlier.  ^  There  had,  of  course,  long  been 
common  petitions  of  the  barons,  tenants-in-chief,  and  occa- 
sionally of  the  clergy ;  but  the  closing  years  of  Edward  IFsj. : 

•  reign  and  the  opening  years  of  Edward  Ill's  seem  to  be|  l 
marked  by  the  earliest  common  petitions  of  the  knights  and!  j 

.  burgesses  who  came  to  constitute  the  house  of  commons.  ^- 
In  the  parliament  of  February  1326-7  we  have  such  phrases 
as  peticions  par  les  chivalers  et  la  commune,  prie  la 
commune,  and  prient  les  chivalers  et  la  commune.  One  of 
the  common '  petitions  of  1325  is  interestuig  from  two  other 
points  of  view :  the  form  of  address — et  auxint,  sire,  prient 
vos  liges  gentz — seems  to  imply  a  personal  allocution  by  a 
Speaker,  and  the  content  of  the  petition  is  a  complaint  that 

»  Prof.  Tout  has  dealt  with  the  administrative  side  of  this  development 
t  iti  his  Place  of  Edward  II's  Reign  in  English  History;  its  parliamentary 
Vftspcct  still  needs  elucidation. 

«  There  are,  for  instance,  from  13 14  onwards,  various  parliamentary 
proceedings  "  ad  petitionem  communitatis  Anglias,"  e.  g.  Rot.  Pan.,  1. 
319a,  3245,  375b;  and  on  February  17,  1316,  "Magnates  et  communitas 
An^liaj  concesserunt  regi  in  auxilium  .  .  ."  {ibid.,  i-^35i)-  I"  1320  tnere 
is  a  petition  from  the  "mHites,  cives,  et  burgenses     (p.  370- 


I20  THE  EVOLUTION  OF  PARLIAMENT 

when  they  present  their  petitions  les  unes  sount  ajournes 
devant  le  roi,  et  les  autres  devant  le  chancellier,  dount  nul 
issue  n'est  jait.'^  Reference  to  the  king's  bench — coram 
rege,  to  chancery,  and  to  other  courts,  was,  we  have  seen, 
the  regular  method  of  deahng  with  petitions  in  parhament ; 
I  it  has  now  become  a  grievance  for  which  a  remedy  is  sought 
by  the  commons  and  promised  by  the  crown.  The  remedy 
is  not  prescribed  in  1325,  but  it  appears  in  1327  in  the  demand 
of  the  commons  that  their  petitions  may  be  made  statutes 
in  parhament  and  held  good.^  This  demand  would  only 
apply,  as  a  rule,  to  common  petitions  :  the  individual  petitions 

!  would  continue  to  be  referred  to  the  various  courts ;  but  the 
common  petitions  come  to  be  taken  first,  to  be  answered  in 
parliament  before  the  "  estates  "  go  home,  and  to  be  enrolled 
as  statutes. 

The  common  petition  is  thus  the  root  of  the  house  of. 
commons  as  a  separate  legislative  assembly.  Institutions 
in  the  middle  ages  are  not  made,  they  grow ;  the  common 
petition  required  common  deliberation,  common  action,  and 
perhaps  even  a  common  clerk ;  the  common  action  became  a 
habit,  the  habit  an  institution,  and  the  institution  a  house. 
Such  processes,  especially  in  tjieir  initial  stages,  are  not 
recorded;  but  in  historical  as  well  as  in  physical  science 
we  have  to  deal  with  many  developments  of  which  we  possess 
no  records,  and  the  fact  that  they  were  not  recorded  does  not 
prove  that  they  never  occurred.  There  is  ample  evidence 
that  no  house  of  commons  existed  in  Edward  I's  reign,  and 
'  ampler  evidence  that  it  did  exist  in  that  gf  Edward  III; 
and  it  is  our  business  to  infer  from  such  knowledge  as  we 
possess  the  means  by  which  it  developed.  This  requires  a 
little  imagination,  but  without  any  undue  stretch  of  fancy, 
one  or  two  guesses  may  be  Tiazarded  with  regard  to  the 
growth  of  parliamentary  procedure  early  in  the  fourteenth 
century. 

The  king  in  council  clearly  met  the  lords  and  commons  in 

parliament  in  common  session,  when  the  chancellor  or  some 

other  member  of  the  council,  usually  a  judge,  explained  to 

the  assembly  the  purport  of  its  summons  and  the  requests 

1  Rot.  Pari.,  i.  430.  2  jbid.^  ii.  10,  12. 


THE  GROWTH  OF   THE  HOUSE  OF  COMMONS    121 

for  assistance  and  advice  that  would  be  laid  before  it.  The' 
advice  was  mainly  a  matter  forjhe  lords,  the  assistance  for 
the  commons.  There  is  reason  to  believe  that  from  Edward 
I's  time  the  king's  council  sat  in  the  midst  of  this  assembly 
on  four  woolsacks  (of  which  only  one  remains)  facing  one 
another,  and  that  Fleta's  phrase  about  the  king  holding  his 
council  in  his  parhaments  has  a  literal  and  material,  as  well 
as  a  figurative  meaning  :  no  one  would  have  arranged  the  four 
woolsacks  in  that  way  unless  their  occupants  were  normally 
engaged  in  confidential  deliberation.  Outside  this  inner  ring 
there  sat,  to  the  right  of  the  throne,  the  spiritual  lords,  and 
to  the  left  the  temporal  lords,  and  facing  the  throne  there 
stood  the  commons. ,  To  them  the  demand  for  aid  would  be 
particularly  addressed,  and  then  the  problem  of  how  and 
what  to  answer  would  arise.  Probably  there  would  be  a  divi- 
sion of  opinion,  and  possibly  discordant  murmurs ;  courageous 
commons  at  the  back  might  urge  in  whispers  to  their  col- 
leagues in  the  front  the  exorbitance  of  the  king's  demands 
and  the  necessity  of  refusal ;  timid  members  at  the  fore  might/ 
tell  their  daring  but  half -concealed  advisers  at  their  back  tq, 
speak  for  themselves;  and  then,  amid  the  muttering  ancj 
murmuring,  the  chancellor  or  other  member  of  the  council 
might  suggest  that  not  much  progress  was  being  made,  and 
that  the  commons  should  go  and  talk  it  over  among  them- 
selves, and  then  come  back  with  an  intelligible  answer.  On" 
some  such  occasion  it  must  have  been  suggested  that  they ' 
should  choose  some  one  of  their  members  to  be  their  Speaker, 
and  that  his  answer,  whether  representing  unanimity  or  but 
a  small  majority,  should  be  considered  equally  binding  upon 
all.  The  commons  then  trooped  out  of  parliament  to  discuss 
in  some  more  private  place  their  domestic  differences.  They  j 
only  reappeared  in  parliament  when  they  had  reached  a  J 
resolution  which  was  reported  by  the  Speaker;  and  he  alone  / 
had  liberty  of  speech  in  parHament. 

This  procedure  was  probably  not  Hmited  to  the  commons  : 
each  estate  deliberated  apart  and  outside  parliament,  and  at 
first  the  knights  of  the  shire  and  the  burgesses  occasionally, 
if  not  regularly,  deliberated  apart  from  one  another.  There 
are  instances  of  the  lords  deliberating  apart  from  the  council 


122  THE  EVOLUTION  OF  PARLIAMENT 

in  parliament,  though  in  the  end  the  lords  remained  with  the 
council  in  parliament  to  form  the  house  of  lords.  The  clergy 
went  off  to  convocation,  and  it  soon  becomes  impossible  to 
distinguish  between  assemblies  of  the  clergy  summoned  by 
the  archbishop  for  ecclesiastical  purposes  and  assemblies  of 
the  clergy  summoned  by  the  king  for  temporal  objects. 
Logically,  of  course,  there  was  a  fundamental  distinction 
between  the  two  :  the  clergy  summoned  by  the  archbishop 
consisted  only  of  the  clergy  in  his  province;  the  clergy 
summoned  by  the  king  consisted,  or  should  have  consisted, 
of  clergy  from  both  provinces  alike.  But  in  this  respect  the 
church  proved  stronger  than  the  crown,  and  the  provincial 
organization  of  the  one  prevailed  against  the  national 
organization  of  the  other.  Instead  of  uniting  to  form  a 
clerical  estate  in  parliament,  the  clergy  of  the  two  provinces 
preferred  to  transact  their  tempor?J  business,  such  as  voting 
taxes,  in  their  two  provincial  convocations,  and  to  abandon 
parliament  except  in  so  far  as  they  were  represented  there 
by  prelates  who  held  baronies  of  the  crown  and  failed  to 
escape  the  liability  involved  therein. 

Where  the  commons  conducted  their  domestic  deliberations 
when  they  first  departed  from  parliament,  is  not  known; 
but  in  Edward  II 's  reign  they  seem  to  have  met  in  the 
refectory  of  Westminster  Abbey,  a  place  outside  the  jurisdic- 
tion of  the  chamberlain  and  other  palace  and  parliamentary 
officials.  Soon  they  took  to  meeting  in  the  chapter  house, 
which  enjoyed  similar  immunity;  their  presence  there 
is  recorded  in   1352,   and  by   1376  the  chapter  house  is 

;^41ready  described  as  their  ancient  place  of  meeting.^    This 
^departure  is  the  first  step  in  the  so-called  separation  of 

f parliament  into  two  houses;  but  that  separation  has  never 
been  complete,  and  the  house  of  commons  was  formed,  not 

I  so  much  by  separation  from  the  house  of  lords,  as  by  the 
amalgamation  of  knights  and  burgesses.  There  are  still 
many  forms  which  indicate  the  unity  of  parliaments,  and 
those  forms  were  realities  long  after  the  fourteenth  century. 
The  discussions  in  the  chapter  house  were  not,  strictl}' 
speaking,  transactions  in  parliament  at  all,  and  the  gathcr- 

1  Rot.  Pari.,  ii.  237,  322;  cf.  "History/'  iii.  34. 


THE   GROWTH  OF   THE  HOUSE  OF  COMMONS     123 

ings  of  commons,  clergy,  lords,  were  more  like  committees  ' 
than  houses  of  parliament.     Then,  as  now,  no  act  of  parlia-  ' 
ment  could  be  made  or  done  outside  the  parliament  chamber ; 
then,  as  now,  the  presence  of  the  Speaker  and  commons  was 
required  at  the  passing  of  every  bill,i  at  the  opening  and 
prorogation  of  every  parliament.     Parliament  still  acts  as 
one  body,  and  not  as  two  houses,  in  all  its  solemn  functions, 
but  in  the  fourteenth  century  the  "  houses  "  had  neither 
been  organized  nor  reduced  to  two.     The  "  committers  " 
were  the  various  estates  in  parliament,  who  as  late  as  1381  ^ 
are  referred  to  as  "  prelates,  temporal  lords,  judges,  knights, 
and  all  the  other  estates."     It  is  the  ''knights  and  all  the^ 
other   estates  "2  who  migrate  to  the  chapter  house  and! 
become  in  time  the  house  of  commons.  ' 

The  judges  remained,  naturally,"  in  the  parliament  chamber  i,- 
with  the  council,  of  which  they  were  an  integral  part.  For 
some  time  and  to  some  extent  the  spiritual  and  temporal 
peers  deliberated  apart  from  the  council  in  parliament  and 
from  one  another.^  But  baronial  tradition  and  influence 
proved  too  strong  for  the  king  in  parliament ;  and  while  out- 
side parliament  the  council  became  "  privy  "  and  remained 
royal,  inside  parliament  it  became  "  magnum,"  and  from 
about  the  middle  of  the  fourteenth  century,  whenever  we*^ 
read  of  the  king's  council  in  parliament  the  king's  great 
council  is  meant.*  In  time  the  peers  monopolize  the  position 
of  "  consiliarii "  in  parliament,  reduce  the  other  councillors, 
such  as  the  judges  and  even  the  chancellor,  to  the  status  of 

^  It  was  a  demand  of  the  commons  in  1348  that  their  petitions  should 
be  answered  and  endorsed  "  en  parlement  devant  la  conlmune  "  {Rot. 
Pari.,  ii.  165). 

2  Probably  the  clergy  were  not  included  in  this  vague  reference,  having 
already  before  1381  practically  severed  their  connexion  with  Parliament. 

3  See,  for  instances  of  separate  deliberation  of  spiritual  and  temporal 
lords,  Rot.  Pari.,  ii.  646,  66. 

*  This  is  one  of  the  points  Prof.  Baldwin  has  not  elucidated,  and  it 
remains  obscure.  As  late  as  1433  there  was  a  "  king's  great  council  in 
parliament  "  as  well  as  a  "  king's  great  council  out  of  parliament  "  (Nicolas, 
Proc,  of  Privy  Council,  iv.  185-6) ;  the  latter  contained  nominated  knights 
of  the  shire  (ihid.,  i.  156,  vi.  339).  Probably  a  "council  "  was  not  even  yet 
regarded  as  a  definite  body  of  men,  but  rather  as  a  conference  without  any 
spcicification  of  personnel.  The  personnel  would  be  specified  by  the  writs 
of  summons  and  not  by  the  name  of  the  meeting  to  which  they  were 
summoned.  It  is  doubtful  whether  we  should  think  of  definite  "  bodies 
until  vvc  can  properly  talk  of  "  corporations." 


124  THE  EVOLUTION  OF  PARLIAMENT 

voteless  advisers,  and  eliminate  all  trace  of  separate  con- 
sultation of  peers  apart  from  councillors.  The  lords,  there- 
fore, instead  of  leaving  the  parliament  chamber  to  deliberate 
by  themselves  as  one  or  two  estates,  remained  with  the 
council  as  advisers  of  the  crown.  It  is  thus  that  the 
I  petitions  of  the  commons  are  enacted  with  the  advice  and 
;  consent  of  the  lords;  for  the  lords  are  the  lords  of  the 
council  which  they  have  invaded.  They  sit  in  the  parlia- 
ment chamber,  they  transact  all  their  business  there,  and 
they  are  not  called  a  "  house  "  until  the  sixteenth  century. 
The  knights  of  the  shire  and  the  burgesses  were  thus  left, 
to  retire  alone  for  joint  or  separate  discussion  and  resolution. 
1  Their  co-operation  has  been  commonly  regarded  as  the 
;  outcome  of  a  deliberate  determination  of  the  knights  to  throw 
in  their  lot  with  the  burgesses  rather  than  with  the  lords; 
but  this  view  presupposes  too  great  an  influence  of  the 
burgesses  in  parliament.  There  is  hardly  a  definite  trace  of 
parliamentary  action  on  their  part  before  1340,  while  there 
are  many  occasions  on  which  the  knights  were  consulted  with- 
out any  reference  to  burgesses  at  all.^  It  would  appear  that 
the  knights  had  already  established  the  habit  of  independent 
deliberation,  and  that  the  fusion  of  the  county  and  civic 
representatives  was  rather  due  to  the  burgesses  attaching 
themselves  to  the  knights.  No  doubt  there  must  have  been 
a  reciprocal  willingness  on  the  side  of  the  knights,  and  it  is  a 
peculiar  and  remarkable  feature  of  the  English  constitution 
that  the  knights,  in  spite  of  their  social  and  political  bonds 
with  the  barons — such  as  common  military  tenure-in-chiefl 
and  common  ideas  of  chivalry — should  have  found  it  easien 
to  work  with  burgesses  than  with  barons;  indeed,  it  wouldl 
not  have  been  possible  but  for  the  shrinking  of  the  baronage 
into  the  peerage.^    The  fusion  of  knights  and  burgesses  was, 

1  E.  g.  Rot.  Pari,  «.  66. 

3  This,  in  its  turn,  was  largely  due  to  the  success  of  the  crown  In  insist- 
ing on  the  writ  of  summons  as  the  qualification  for  attendance  at  par- 
liament. If  parliament  had  really  been  a  system  of  estates,  and  the 
second  estate  had  elected  its  representatives,  the  lesser  barons  would 
doubtless  have  continued  to  co-operate  with  the  greater.  But  these 
greater  barons  were  summoned  by  special  writ,  which  gave  no  opportunity 
for  election  and  removed  them  from  the  control  of  the  lesser. 


THE  GROWTH  OF  THE  HOUSE  OF  COMMONS    125 

however,  a  slow  process,  the  steps  in  which  might  be  traced 
in   some   detail   in  the  "  Rolls  of  Pariiaments  " ;  possibly 
the  Good  parhament  of  1376  exemplified  the  firstfruits  of^ 
amalgamation.     In  any  case,  separate  consultation  of  knights  ■ 
and^  burgesses  grew  rarer,  while  their  joint  deliberation  in  \ 
the  "  domus  communis  "  grew  more  regular  and  well  defined.  • 
This  growth  required  some  organization,  and  during  the 
fourteenth  century  the  development  of  the  house  of  com- 
mons gave  rise  to  the  speakership  and  clerkship  of  the  house./" 
The  Modus  Tenendi  ParliamenUim  speaks  of  each  of  the 
five  "  gradus  "  of  parliament  having  its  own  clerk;  1  but  the 
fusion  of  estates  reduced  the  number  of  clerks  to  two,  or 
three  if  the  clerk  of  convocation  be  included.    The  clerk  of 
the  parliaments  was,   as  he  remains   to-day,  the  official  I 
responsible  for  the  records  of  the  transactions  of  the  estates/ 
in  common  session  in  the  parliament  chamber,  now  called 
the  house  of  lords;  his  assistant,  the  second  clerk,  was  toldj 
off  to  do  the  clerical  work  of  the  knights  and  burgesses,  and| 
became  the  clerk  of  the  house  of  commons.^    He  kept  no! 
journal  in  the  modern  sense  of  the  word,  though  he  may  \ 
have  kept  in  the  fifteenth,  and  certainly  kept  in  the  sixteenth 
century  a  book  in  which  he  entered  the  attendance  of 
members.^     But  his  principal  work  was  to  draft  the  answers  ^' 
of  the  commons  to  the  king's  demands,  and  to  reduce  toi 
writing  common  petitions  or  bills  based  upon  the  discussions  | 
in  the   house.     The  individual    petitions  which  members' 
brought  up  with  them  were,  no  doubt,  drafted  locally,  but 
to  combine  them  in  common  petitions  or  to  draft  fresh  ones 
after  deliberation  required  a  clerk  of  the  house. 

1  There  is  no  direct  trace  of  the  action  of  these  five  clerks  in  the  "  Rolls  " ; 
possibly  the  Modus  refers  to  the  period  before  the  "  Rolls  "  become  anything 
like  a  full  record  of  parliamentary  proceedings.  ,1.  j  1    v- 

2  The  so-called  clerk  of  the  house  of  commons  is  still  described  in  his 
patent  of  appointment  "  Under-Clerk  of  the  Parliaments  appointed  to 
attend  the  House  of  Commons  "  {Report  on  Establishment  ofH.  of  C.  Pari. 
Papers,  1833,  xii.  15). 

*  In  the  fourteenth  century  the  attendance  of  knights  and  burgesses 
was  so  little  necessary  that  no  means  of  compulsion  were  employed  tne 
only  penalty  being  loss  of  wages.  Richard  TI  tried  to  compel  the  attena- 
ance  of  barons,  but  compulsion  was  not  regularly  applied  to  burgesses 
until  the  sixteenth  century ;  see  below,  chap.  xvi. 


126  THE  EVOLUTION   OF  PARLIAMENT 

The  other  official  was  the  Speaker,  so  called  because  he 
*-'  spoke  f or  "  1  the  commons  in  parlianient  and  alone  enjoyed 
liberty  of  speech  in  the  parliament  chamber.  This,  of  course, 
was  an  entirely  different  liberty  from  that  with  which  it  has 
been  confused,  the  liberty  of  individual  speech  on  the  part  of 
members  in  the  "  domus  communis,"  which  was  not  in 
parliament  at  all.  The  medieval  claim  made  by  every 
Speaker  at  the  beginning  of  every  parliament  was  for  himself 
alone,  and  referred  to  transactions  in  the  common  sessions 
in  the  parliament  chamber.  There  each  prelate,  baron, 
or  councillor  might  speak,  but  no  member  of  the  commons 
save  the  Speaker,  and  this  is  the  rule  to-day.  He  could  only 
speak  as  the  mouthpiece  of  the  commons,  and  the  principal, 
indeed,  the  only,  liberty  he  claimed  for  a  century,  was  that, 
if  he  misreported  or  misrepresented  any  resolution  of  the 
commons,  he  might  withdraw  or  correct  what  he  had  said. 
The  entirely  different  claim  to  freedom  of  speech  on  behalf 
of  individual  members  in  the  house  of  commons  was  not 
added  to  the  Speaker's  repertoire  until  the  reign  of  that 
great  architect  of  parliament,  Henry  VHI.^  With  regard 
to  those  other  functions  of  the  Speaker  which  have  eclipsed 
his  original  reason  for  existence,  their  growth  is  wrapped 
in  darkness.  No  records  whatever  have  survived  of  the 
domestic  proceedings  of  the  house  of  commons  earlier  than 
1547,  and  we  have  no  information  about  the  steps  by  which 
the  Speaker  became  chairman  of  the  house  and  by  which  his 
authority  was  developed.  Sir  William  Trussell  was  apparently 
Speaker  in  1343,^  but  he  and  his  medieval  successors  only 
appear  on  the  record  when  they  have  left  the  domus  com-^ 
munis,  and  come  at  the  head  of  their  fellow-members  before 
the  lords  and  the  council  in  the  parliament  chamber. 

^  "  Prolocutor  "  is  his  earliest  official  title. 

2  In  1477,  for  instance,  the  Speaker  asks  for  "  omnes  ac  singulas  alias 
lilx^rtates  et  franchesias  quas  aliqiiis  hujusraodi  Prolocutor  pcraiitca 
melius  et  liberius  liabuit."  The  petition  is  for  himself,  and  not  for  other 
members  of  the  House  {Rot.  Pari.,  vi.  167).  In  1482  the  Speaker,  John 
Wood,  omitted  the  petition  for  these  "alias  libertates  "  {ibid.,  vi,  102; 
of.  iv.  420,  482). 

3  Ibid.,  ii.  136  b:  "  et  puis  vindrent  des  ehivalers  des  counteez  et  ies 
communes  et  responderent  par  Monsieur  V/illiam  Trussell." 


THE   GROWTH  OF   THE  HOUSE  OF  COMMONS     127 

But  the  mere  existence  of  the  Speaker  is  evidence  of  a 

corporate  feeling  and  organization,  which  was  totally  lacking 

in  the  reign  of    Edward  I  but  grew  out  of   a  subsequent 

half-century    of    common   deliberation   and   action.     Then 

knights  and  burgesses  had  only  been  present  at  Westminster 

as  individual  petitioners  on  behalf  of  their  constituents ;  and 

it  is  even  doubtful  whether  they  voted  grants  collectively 

or  by  separate  bargain  with  the  crown.     In  the  reign  of 

his  grandson  they  are  a  coherent  body  of  national  legislators. 

The  "  common  "  petition  has  been  developed,  backed  by  the 

hint  of  a  common  resistance  to  taxation ;  and  in  1340  half 

a  dozen  citizens  and  burgesses,  as  well  as  a  dozen  knights, 

are   elected  by  their  fellow-members  to  join  with  certain  > 

prelates,  earls,  and  barons  to  try  and  examine  the  petitions 

:)rcsented  in  parliament  and  put  them  into  statutes  which 

hall  be  perpetual.^     This  is  the  method  by  which  the 

commons  asserted  legislative  power.    They  never  claimed  a 

ight  to  initiate  legislation;  and  much  industry  has  been 

A^asted  in  attempts  to  fix  the  date  at  which  the  commons 

issertcd  their  right  to  legislate.     They  do  not  possess  that 

ibstract  right  to-day.     The  crown  alone  enacts  legislation 

n  parliament ;  the  commons  merely  petition,  and  the  right 

A  petition  has  existed  since  the  days  of  Henry  II.    The 

Drocess  of  development  was  more  subtle  than  any  declara- 

ion  of  right.     The  individual  petition  was  gradually  turned 

nto  the  common  petition  of  the  house,  and  then  backed  by  . 

:  control  of  the  purse,  and  the  so-called  right  to  legislate 
onsists   in   the   commons'  power  of  making  government  . 
mpossible  if  heed  is  not  paid  to  the  petitions  they  have  the 
ight  to  present. 

The  change  from  the  individual  to  the  common  petition 
i^as  fundamental.  The  high  court  of  parliament  was  con- 
crted  into  a  legislature,  and  its  judicial  function  obscured 
y  its  legislative  activity.  Common  petitions  lead  us  out 
f  the  realm  of  common  law  into  that  of  common  politics; 
3r  the  individual  wrong  is  a  matter  of  law,  the  common 

[■  ievance  is  a  question  of  poHtics.     Common  petitions  could 


128  THE  EVOLUTION   OF  PARLIAMENT 

not  be  settled  in  court,  and  the  remedy  for  their  reference 
to  chancery,  king's  bench,  and  so  forth,  of  which  the 
commons  complained  in  1325,^  could  only  be  found  by  their 
enactment  as  statutes  in  parliament  devant  la  commune. 
Common  action  is  the  cause,  as  well  as  the  result  of  com- 
munity of  feeling,  and  the  communitates  become  the  communi- 
tas  commimitatum.  By  that  process  the  locally-minded 
representatives  of  heterogeneous  communities  are  welded 
into  a  house  of  commons,  and  in  that  house,  more  than 
anywhere  else,  the  "  estates  "  are  made  into  the  state. 

This  growth  of  common  petitions,  and  the  absorption  of 
the  commons  in  their  prosecution,  diminished  the  share 
of  the  commons  in  the  judicial  work  of  parliament,  made' 
parliament  itself  less  of  a  high  court,  and  fostered  the  ulti-j 
mate  but  incomplete  differentiation  between  our  high  court  og 
parliament  and  our  high  court  of  justice.  Individual  petitions 
were  more  and  more  neglected  by  the  commons ;  they  insisted 
upon  answers  being  given  to  their  common  petitions  in 
parliament  before  they  dispersed,  but  they  would  not  wait 
for  answers  to  individual  petitions.  These  were  more  and 
more  referred  to  the  council  at  the  end  of  the  session,^  if 
they  had  not  already  been  answered,  and  this  reference 
entitled  the  council  to  endorse  its  answers  per  aucioritatem 
parliamenti.^  Answers  to  such  referred  petitions  were  also 
entered  on  the  *'  Rolls  of  Parliaments,"  although  not  given 
until  after  the  dismissal  of  the  estates,*  and  although  the 
duration  of  a  parliament  was  coming  to  be  regarded  as, 
limited  to  the  session  of  the  estates.  For,  while  as  late 
as  the  beginning  of  Edward  IIFs  reign  a  parliament  might 
continue  after  the  dismissal  of  the  commons,^  the  concen- 

^  Rot.  Pari.,  i.  430. 

2  Ibid.,  ii.  243 ;  Nicolas,  Proc.  of  Privy  Council,  il.  307,  v.  p.  xl. 

3  As  late  as  December  1552  the  charter  granted  to  the  Merchant  Adven- 
turers, and  preserved  in  their  hall  at  Bristol,  has  on  it  per  ayctoritatem 
parliamenti,  although  there  had  been  no  session  since  March.  Cf.  Elsynge 
Modus,  pp.  294-7,  and  below,  p.  328  w. 

*  Rot.  Pari.,  ii.  304,  iv.  334,  506. 

**  E.  g.  Rot.  Pari.,  ii.  656.     After  the  knights,  citizens,  burgesses  a 
clergy  had  been  given  leave  to  go  home  (Saturday,  March  21,   1331- 
on  condition  that  the  prelates,  earls,  barons,  and  councillors  remain© 
proceedings  continued  "  en  pleyn  parleraent "  on  the  Monday. 


1 


THE  GROWTH  OF   THE  HOUSE  OF  COMMONS      f^"] 

tration  of  attention  upon  common  petitions  led,  before  the- 
end  of  the  reign,  to  the  adoption  of  the  idea  that  the' 
presence  of  the  commons  was  essential  to  the  continuance 
of  a  session  of  parliament.  Out  of  this  habitual  reference 
of  individual  petitions  by  parliament  to  the  council  grew, 
in  the  latter  half  of  the  fourteenth  century,  the  extensive*^ 
jurisdiction  of  the  council  and  indirectly  of  chancery,  to  which 
the  council  in  turn  referred  the  bulk;  ^  and  the  specialization 
and  differentiation  of  the  functions  of  parliament  began. 
In  Edward  Vs  reign  all  sorts  of  business  had  been  transacted 
in  parliament ;  the  regular  reference  of  individual  petitions 
to  the  council  and  to  chancery  tended  to  develop  the  council's 
jurisdiction  and  to  restrict  parliament  to  legislation. 

This  division  of  functions  likewise  tended  to  limit  the 
council's  power  of  legislation.  The  means  by  which  the 
commons  secured  ^  the  enactment  of  their  common  petitions 
have  already  been  indicated;  it  cost  a  longer  and  severer 
struggle  to  limit  the  council's  power  of  legislation  and 
enforce  the  necessity  of  parliamentary  consent.  Edward  I's 
great  legislation  had  been  promulgated  in  assemblies  which, 
if  called  parliaments,  did  not  contain  the  estates,  and  the 
presumed  recognition,  in  1322,  of  the  need  for  the  consent  of 
the  commons  to  legislation  has  been  exaggerated.^  In  1327 
we  find  a  distinction  made  between  statutes  and  other 
forms  of  legislation,  and  the  idea  is  that  a  statute  should  be 
perpetual,  while  enactments  of  a  more  temporary  character 
were  expressed  in  letters  patent.^  But  the  differentiation 
between  those  petitions,  or  parts  of  petitions,  which  were  to 
be  made  statutes  and  those  which  were  to  receive  less  solemn 
authorization  was  left  to  the  council  or  to  the  judges  as  late 
as  1422,  when  the  clerk  of  the  parliaments  was  ordered  to  read 
to  the  council  the  acts  passed  at  the  late  parliament,  and  then 
ubmit  them  to  the  two  chief  justices,  who  were  to  decide 

1  Cf.  Baldwin,  King's  Council,  pp.  241  sqq. 

2  Their  success  was,  of  course,  only  partial ;  the  crown's  power  of  veto 
,vas  only  limited  by  political  expediency;  it  has  never  been  hnnted  by 
aw  except  during  the  Long  Parliament. 

■  See  below,  pp.  241-2. 
*  Rot.  Pari.,  ii.  12,  113. 
K 


I30  THE  EVOLUTION  OF  PARLIAMENT 

which  of  them  were  statutes.  These  were  to  be  proclaimed ; 
the  other  '*  acts  "  were  to  be  handed  over  to  the  clerk  of 
the  council,  though  all  alike  were  to  be  enrolled,  as  was  the 
custom,  in  chancery.  ^  It  was  not  till  the  sixteenth  century 
that  the  crown  lost  the  power  of  amending  and  modifying 
bills  passed  by  both  houses  of  parliament.  In  the  fifteenth 
century  the  practice  was  extended,  if  not  also  begun,  of  draft- 
ing petitions  in  the  form  of  acts,  and  we  have  frequent  refer- 
ences to  a  bill  or  petition  "in  se  formam  actus  continens  " ; 
but  Henry  VII  himself,  and  even  Elizabeth,  occasionally  took 
the  liberty  of  adding  provisos  to,  or  otherwise  modifying 
bills  before  signifying  the  royal  assent.^  There  are  three 
-Stages  in  the  history  of  legislation :  down  to  the  reign  of' 
Edward  I  it  is  the  act  of  the  crown;  then  it  becomes  the 
act  of  the  crown  in  parliament,  and  finally  the  act  of 
parliament.  At  the  end  of  the  middle  ages  it  is  only  in  the , 
second  of  these  stages,  and  side  by  side  with  its  power  to 
legislate  in  parliament  the  crown  possessed  a  concurrent 
right  to  legislate  by  ordinance  independently  of  parliament, 
a  power  which  had  never  been  defined. 

The  original  function  of  parliament  as  a  gathering  in  which, 
according  to  Fleta,  **  judicial  doubts  are  determined  and 
new  remedies  are  established  for  new  wrongs,  and  justice 
is  done  to  every  one  according  to  his  deserts,"  tends  thus,  by 
the  end  of  the  fourteenth  century,  to  be  Hmited  to  the  second 
object  of  enacting  new  remedies  for  new  wrongs;  and  this 
restriction  of  function  led  to  a  restriction  of  its  frequency. 
To  the  council  and  chancery  parliament  itself  referred  most 
of  its  business,  and  they  sat  throughout  the  four  legal  terms 
of  the  year.  As  early  as  1348  it  was  ordered  that  individual 
petitions  should  be  addressed  to  the  chancellor  and  common 
petitions  to  the  clerk  of  the  parliaments.^  Parliament 
need  no  longer  meet  thrice  a  year,  as  in  Edward  I's  reign ; 
and  indeed,  quite  apart  from  this  judicial  transformation, 

*  Nicolas,  Pfoc.  of  Privy  Council,  iii.  22. 

*  E.g.  Rot.  Pari.,  vi.  275,  412,  460;  my  Henry  VII,  ii.  16-17;  D'Ewes, 
Journals,  p.  341&.  Bills  drawn  up  in  the  form  of  an  act  were  apparently 
drawn  on  parchment  [Rot.  Pari.,  vi.  288,  331). 

8  Rot.  Pari.,  ii.  201. 


I 


THE   GROWTH  OF  THE  HOUSE  OF  COMMONS     131 


there  were  other  causes  tending  to  the  infrequency  of  parha 
J*      mentary  sessions.     The  more  popular  and  important  an  as- 
^      sembly  it  grew,  and  the  greater  the  attendance  of  commons 
^     and  the  length  of  their  sessions,  the  less  practicable  it  became 
to  hold  three  general  elections  and  three  sessions  a  year. 
Accordingly  the  three  sessions  a  year  of  Edward  I's  time  are 
reduced  to  about  three  in  two  years  in  Edward  II's,  to  one^^ 
a  year  in  the  middle  of  the  fourteenth  century,  and  in  the 
fifteenth  century  to  one  in  two,  three,  four,  or  even  five 
years.     This  progressive  rarity  of  parliaments  is  not  due  to 
the  tyranny  of  kings,  for  it  proceeds  independently  of  the 
dynasty  or  particular  monarch ;  it  is  due  to  a  fundamental 
change  in  the  character  of  parliament,  to  the  specialization*^ 
of  functions  previously  performed  by  a  rudimentary  organ, 
and  to  the  transference  of  most  of  the  original  work  of 
^^     parliament  to  the  council  and  to  chancery. 
:tj 

D.nt, 

iaoii 
%^. 

5iii 


* 

^ 


, 


CHAPTER  VII 

PARLIAMENT  AND  NATIONALISM 

The  loss  of  original  functions  through  the  transformation 
of  parliament  from  a  high  court  into  a  legislature  diminished 
its  usefulness  and  the  reasons  for  its  existence ;  and,  pending 
the  development  of  fresh  groimds  of  action,  parliament  in  the 
fifteenth  century  seemed  to  be  treading  the  downward  path 
of  continental  estates.  Its  sessions  grew  ever  less  frequent ; 
from  three  a  year  they  sank  to  one  in  every  four  or 
five  years;  and  intervals  of  seven  years  under  Henry  VII 
and  Wolsey,  and  of  eleven  under  Charles  I,  might  have  been 
the  prelude  to  a  silence  as  prolonged  and  profound  as  that 
which  fell  upon  national  representation  in  France.  Parlia- 
ment itself  showed  no  desire  to  insist  upon  its  continuance. 
After  the  reference  of  most  of  its  judicial  work  to  the  council, 
the  need  for  supply  alone  made  it  indispensable  to  the 
crown;  and  if  parliament  had  succeeded  in  enforcing  its 
persistent  demand  that  the  king  should  "  live  of  his  own," 
it  would  have  rendered  its  own  existence  superfluous. 
Nothing  but  compulsion  on  the  part  of  the  crown  could 
get  a  parliament  together;  and  as  late  as  the  sixteenth 
century  ministers  were  wont  to  apologize  to  parliament  for 
its  summons.  "  What,"  asked  Sir  Thomas  Smith  in  1560, 
"  can  a  commonwealth  desire  more  than  peace,  liberty, 
quietness,  little  taking  of  their  money,  few  parliaments?  "  ^ 

The  reluctance  of  parliament  to  assume  responsibility  was 
as  marked  as  its  unwillingness  to  meet,  its  haste  to  get  home, 
or  its  anxiety  to  escape  taxation;  and  the  impotence  that 
was  the  result  of  this  slowness  to  serve  might  well  have 

*  Strype,  Life  of  Sir  T.  Smith,  p.  192.  Sir  Nicolas  Bacon  in  January  1563 
claimed  in  parliament  credit  for  the  queen  on  the  ground  of  her  reluctance 
to  burden  the  country  with  it  (D'Ewes,  Journals,  p.  61). 

132 


PARLIAMENT  AND  NATIONALISM  133 

explained  its  disappearance  at  the  end  of  the  fifteenth 
century.  It  had  failed  alike  to  check  tyrants  and  to  support 
constitutional  kings.  Good  resolutions  were  the  limit  of  its 
capacity,  and  they  were  short-lived.  No  parliament  had 
•offered  successful  resistance  to  the  crown,  and  the  troubles 
of  Richard  II,  Henry  VI,  and  Richard  III  came  from  other 
quarters.  While  parliaments  were  ever  in  opposition,  rebel- 
lion and  rival  claims  to  the  throne  were  always  required  to 
effect  a  change  in  government  or  in  policy.  In  spite  of  the 
vaunted  constitutional  experiment  of  the  Lancastrians,  con- 
stitutional methods  were,  to  the  end  of  the  middle  ages, 
powerless  to  effect  constitutional  government.  So  far  from 
the  constitution  being  in  all  essentials  complete  in  the  reign 
of  Edward  I,  it  lacked  the  elementary  means  of  working  at  all 
and  was  periodically  being  superseded  by  battle  and  murder. 
The  constitutional  ideal  which  Sir  John  Fortescue  depicted 
at  the  close  of  the  middle  ages  had  little  more  relevance 
to€he  practice  of  his  day  than  More's  Utopia  had  to  the 
government  of  Cardinal  Wolsey. 

The  great  service  which  parliaments  rendered  in  the 
middle  ages  was  not,  in  fact,  to  make  England  a  constitu- 
tional state,  but  to  foster  its  growth  into  a  national  state 
based  on  something  broader  and  deeper  than  monarch- 
ical centralization,  to  make  national  unity  a  thing  of 
the  spirit  rather  than  a  territorial  expression  or  a 
mechanical  matter  of  administration,  to  evoke  a  common 
political  consciousness  at  Westminster  and  then  to  pro- 
pagate it  in  the  constituencies.  The  value  of  parliaments 
consisted  not  so  much  in  what  members  brought  with  them 
as  in  what  they  took  away.  NationaHsm  in  the  middle  ages 
came  nearer  to  Napoleon  Ill's  la  volonte  de  chacun  than  to 
Rousseau's  la  volonte  generate,  and  it  was  in  and  through 
parliaments  that  local  and  social  prejudice  was  merged 
in  a  common  sense.  Every  Englishman  of  to-day  feels 
and  reahzes  his  nationality  to  some  extent;  the  degree  is 
a  matter  of  individual  imagination,  education,  and  mterest. 
Generally  speaking,  his  attachment  to  his  country  over- 
rides every  other  affection  except,  perhaps,  his  devotion  to 


134  THE  EVOLUTION  OF  PARLIAMENT 

himself  and  his  family  and  in  some  cases  his  addiction  to 
his  religious  or  moral  faith.  But  in  the  middle  ages  we  are 
dealing  with  men  whose  nationalism  came  comparatively 
low  in  the  scale  of  their  affections.  Men  of  the  highest 
mind  and  character  agreed  with  Archbishop  Winchelsey 
that  the  loyalty  they  owed  the  pope  came  before  the  loyalty 
they  owed  the  king.  Barons  were,  as  a  rule,  more  devoted 
to  their  class  than  to  either  pope  or  king;  the  ordinary 
burgess  or  squire  valued  his  local  affinities  more  than  his 
national  bonds,  and  to  the  villager  the  parish  was  his 
world.  When  he  threw  himself  upon  his  country — posuit 
se  super  patriam — ^his  country  consisted  of  his  neighbours, 
and  every  one  else  was  a  foreigner.  These  symptoms  are 
not  yet  extinct,  and  in  very  recent  years  a  protectionist 
speaker  was  told  by  his  Devonshire  audience  that  it  was 
not  the  "  foreign  "  foreigner  they  disliked,  but  the  Somerset- 
shire foreigner;  a  similar  feeling  may  even  be  traced  with 
regard  to  the  Mercians  in  the  works  of  the  vigorous  West- 
Saxon  who  wrote  the  History  of  the  Norman  Conquest.  The 
difference  between  modern  and  medieval  Englishmen's 
patriotism  is  one  of  degree;  in  the  middle  ages  locality 
preceded  the  nation,  and  it  was  through  parliaments  that  the 
order  was  reversed. 

The  nation,  like  the  child,  began  its  education  with  what 
the  Germans  call  heimatkunde.  Intimate  things  were  the 
first  its  mind  could  grasp.  By  the  thirteenth  century  the 
normal  range  of  the  average  freeman's  imagmation  com- 
prehended the  shire,  and  his  public  activities  were  organized 
on  that  basis.  He  had  to  bear  arms  in  the  fyrd,  but  the 
fyrd  could  not  be  summoned  to  fight  outside  the  shire  except 
at  the  king's  expense.  He  had  to  serve  as  a  juror,  but  he 
could  not  be  empanelled  or  forced  to  plead  as  a  suitor  beyond 
the  county  boundary.  The  county  was  his  country,  and 
both  the  political  and  the  verbal  distinctions  between  the 
terms  are  of  modern  growth.^     Men  fought  as  shires  and 

1  Cf.  R.  Brunne,  "  the  cuntre  of  Dorseth  "  (c.  1330),  Caxton,  "  the 
countre  of  Leycester  "  (1480),  Fitzherbert,  "  Leycestershyre,  Lankesshyre, 
Yorkeshyre,  and  many  other  countreys  "  (1523)  {N.  E.  D.). 


PARLIAMENT  AND  NATIONALISM  135 

thought  as  shires  and  judged  as  shires;  they  did  nothing 
as  a  nation,  and  it  is  grotesque  to  speak  of  "  England  " 
doing  anything  at  all  before  parliaments  appeared,  because 
there  was  no  "  England  "  capable  of  doing  it.  During  the 
Norman  period  "England"  suffers,  but  does  not  act; 
Henry  II  does  much,  but  he  spends  nine-tenths  of  his  reign 
abroad  and  represents  France  rather  than  England.  The 
importance  of  Magna  Carta  consists,  not  in  the  nature  of 
its  provisions,  but  in  the  co-operation  by  which  it  was 
achieved.  The  movement  against  John  was,  however, 
spasmodic  and  feudal  rather  than  popular,  and  the  opposition 
to  Henry  III  was  also  mainly  baronial.  It  was  not  until 
Simon  de  Montfort  and  Edward  I  popularized  parliaments 
that  England  became  really  conscious  of  itself  and  acquired 
the  means  of  national  action.  Even  then  the  action  must  not 
be  exaggerated ;  there  was  no  will  on  the  part  of  the  English 
people  to  determine  or  direct  a  national  policy,  and  it  was 
little  more  than  a  formal  expression  of  national  acquiescence 
that  Edward  I  sought  in  parliaments.  Consent,  and  not 
direction,  was  the  object  of  its  summons ;  and  its  importance 
lay  in  its  unity,  in  the  absence  of  rival  parliaments  and  of 
provincial  estates. 

There  are  many  aspects  of  this  unity  of  the  English  parlia- 
mentary system.  An  attempt  has  already  been  made  to 
indicate  the  significance  of  the  fact  which  distinguished  every 
English  parliament  since  Edward  I  from  all  continental 
systems  of  estates,  namely,  the  fact  that  it  was  not  merely 
a  parlement  nor  a  system  of  estates,  but  both  a  court  of  law 
and  a  representative  assembly,  at  once  a  judicial,  a  legisla- 
tive, and  a  taxing  body.  This  was  perhaps  the  most  funda- 
mental element  in  the  unity  of  parliament,  but  another  was 
hardly  less  essential  to  its  national  character,  and  that  was 
its  comprehensive  scope.  Popular  representation  by  itself 
has  never  been  incompatible  with  monarchical  despotism  : 
provincial  estates  with  representation  of  the  tiers  etat  con- 
tinued in  many  parts  of  France  throughout  the  ancien  regime 
down  to  the  Revolution  of  1789.  They  continued  m  the 
Spanish-Austrian  Netherlands  throughout  the  same  period, 


136  THE  EVOLUTION   OF  PARLIAMENT 

and  while  Philip  IV  denounced  estates-general  as  fatal  to 
the  principle  of  monarchy,^  he  and  his  successors  permitted 
the  innocuous  continuance  of  provincial  representation. 
The  most  despotic  of  German  princes  were  equally  com- 
plaisant, and  even  Von  Ranke  expressed  a  preference  for 
Landtag  over  Reichstag  which  helps  to  explain  the  failure 
of  the  German  empire  to  achieve  responsible  government. 
This  monarchical  predilection  for  provincialism  is  merely 
an  expression  of  the  despotic  maxim  divide  et  impera,  and 
it  illustrates  the  fact  that  provincial  estates  were  not  merely 
harmless  to  autocracy  but  dangerous  to  national  self- 
government;  they  were,  in  fact,  the  principal  enemy  of 
estates-general,  because  by  diverting  to  local  objects  the 
desire  for  self-government  they  weakened  the  strength  of 
national  co-operation.  Nowhere  did  provincial  estates,  or 
estates-general  where  provincial  estates  existed,  succeed  in 
their  resistance  to  the  growth  of  monarchy  in  the  sixteenth 
century. 

The  unity  of  the  English  parliament  has  been  unchallenged 
for  so  many  centuries  that  it  requires  some  effort  to  realize 
the  medieval  danger  of  provincial  estates.  Yet  the  forces 
and  temptations  leading  to  such  a  developement  were  by  no 
means  inconsiderable.  England  before  the  Norman  Conquest 
was  rarely  imited  under  a  single  crown,  and  even  when  it 
was,  expedients  were  occasionally  adopted,  like  Cnut's  four 
great  earldoms,  which  were  hardly  less  fatal  than  actual 
dismemberment  to  national  unity.  Long  after  the  Conquest 
the  divergences  between  England  north  and  England  south 
of  the  Humber  were  sufficiently  strong  to  make  their  separa- 
tion a  possible  contingency.  It  was  a  recognized  line  of 
administrative  division  throughout  the  middle  ages,  and 
as  late  as  Elizabeth's  reign  northern  catholics  dreamt  of 
an  independent  kingdom,  or  of  dependence  on  the  Scottish 
rather  than  on  the  English  crown.  The  Pilgrims  of  Grace 
demanded  a  parliament  at  York,  and  Mary  thought  of 
removing  her  government  thither  for  shelter  and  sympathy. 

*  "Les  Etats  generaux  sont  pemicieux  en  tout  temps  et  dans  to  us  les  i 
pays  monarchiques  sans  exception  "  (Pirenne,  Hist,  de  Belgique.  iv.  401). 


PARLIAMENT  AND  NATIONALISM  137 

It  was  only  by  the  hundred  years'  labours  of  the  council 
of  the  north  that  the  conservative  counties  north  of  the 
Humber  were  really  made  one  with  the  rest  of  England. 
Further,  there  was  the  ecclesiastical  model;  and  if  parHa- 
ment  was  moulded  so  closely  upon  the  organization  of  the 
church  as  has  sometimes  been  supposed,^  there  would  have 
been  two  parliaments  in  the  English  state,  as  there  were 
two  convocations  in  the  EngHsh  church.  Had  the  state 
imitated  the  church  and  constructed  two  parliaments  in 
England,  or  had  the  church  imitated  the  state  and  gathered 
its  forces  into  one  national  assembly,  the  history  of  both 
church  and  state  in  England  would  have  been  fundament- 
ally different. 

Edward  I  did,  during  one  misguided  moment  in  1282,  set 
the  perilous  precedent  of  a  double  parliament,  one  for  the 
north,  meeting  at  York,  the  other  for  the  south,  meeting  at 
Westminster.  That  neither  he  nor  any  of  his  successors 
followed  this  evil  example  was  due  to  a  number  of  causes 
connected  with  general  EngUsh  history.  The  unity  of 
England  is  primarily  the  effect  of  the  unity  of  its  monarchy. 
Fortunately  the  Danish  wars  destroyed  all  royal  houses 
save  that  of  Ecgberht;  Alfred  the  Great  was  not,  like 
Hugh  Capet,  elected  king  by  a  group  of  rival  princes,  whose 
descendants  might  claim  to  be  peers  of  the  crown.  Harold's 
usurpation  might,  if  successful,  have  divided  England  as 
France  was  divided;  but  the  most  unruly  feudatory  of  the 
French  crown  restored  unity  to  England  by  the  Norman 
Conquest.  To  the  Conqueror  there  was  little  difference 
between  West  Saxon,  Mercian,  and  Northumbrian;  he  had 
no  more  local  prejudices  than  the  Indian  civil  servant,  who 
is  making  India  a  nation  by  the  same  steady  application  of 
common  principles  of  government  to  diverse  peoples  as  that 
by  which  the  Norman  baron  and  Angevin  lawyer  reduced  to 
some  appearance  of  uniformity  the  tribal  perversities  of 
their  heterogeneous  subjects.  ,    t.  .    n  .. 

Not  only  was  monarchical  unity  secured,  but  all  traces 
of  the  kingdoms  over  which  rival  houses  had  ruled  were 
1  Cf.  E.  Barker,  The  Dominican  Order  and  Convocation,  1913. 


138  THE  EVOLUTION  OF  PARLIAMENT 

obliterated.  When  the  West- Saxon  kings  acquired  Mercia, 
Northumbria,  and  East  Anglia,  those  realms  were  not  re- 
tained, as  Brittany,  Normandy,  and  other  French  fiefs  were, 
as  administrative  units.  They  were  split  up  into  shires  con- 
trolled by  the  central  government,  and  not  permitted  any 
provincial  parlements  or  estates.  Even  in  the  most  turbulent 
periods  of  English  anarchy,  the  over-mighty  subject  had  to 
rely  upon  scattered  domains.  A  Geoffrey  de  Mandeville,  a 
Thomas  of  Lancaster,  or  a  Richard  of  York  might  wreck  a 
government  and  overawe,  or  even  seize,  the  crown ;  but  they 
could  not  dismember  England,  because  they  could  acquire 
no  such  consolidated  fiefs  as  those  upon  which  dukes  and 
counts  in  France,  Germany,  and  the  Netherlands  built  their 
independence  of  national  authority.  The  shires  saved  the 
unity  of  medieval  England  because  they  were  controlled 
by  the  crown  and  did  not  foment  provincial  independence. 
They  were  the  largest  subdivision  under  the  crown,  and 
the  great  majority  of  them  were  given  no  earls.  A  dozen 
is  the  maximum  number  of  medieval  earls  against  thrice 
that  number  of  shires.  Two-thirds  were  directly  under 
the  crown,  and  even  in  those  which  had  earls  the  king 
maintained  a  sheriff  who  took  two-thirds  of  the  proceeds 
ofljurisdiction,  leaving  but  one  to  the  earl.  It  is  the  sheriff, 
and  not  the  earl,  who  dominates  the  shire,  and  thus  links 
the|  shire  to  parliament,  instead  of  leaving  it  to  develop 
feudal  autonomy  and  provincial  estates  under  the  earl. 
The  "  palatinates  "  ^  which  approached  most  nearly  to  the 
provincial  organization  of  the  continent  were  few,  and  were 
restricted  to  the  borders.  The  rest  of  England  was  "  shired,'' 
and  this  *'  shiring  "  did  for  the  unification  of  England  what 
the  breaking  up  of  the  French  provinces  into  departments 
achieved  for  the  unity  of  revolutionary  France. 

The  shire-organization,  being  the  work  of  the  central 
government,  was  naturally  made  the  means  of  the  develop- 
ment of  common  law  and  of  parliament.     It  was  in  the 

^  The  word  is  rarely  used  in  the  middle  ages,  though  Anthony  Bek 
claimed  in  1293  "to  hold  as  a  comes  palatinus.  The  title  Registrum  Palatinum 
Dunelmense,  which  Sir  T.  D.  Hardy  prefixed  to  the  four  volumes  he  edited 
for  the  Rolls  Series,  was  invented  by  him. 


PARLIAMENT  AND   NATIONALISM  139 

county  courts  that  the  royal  judges  appeared  and  appHed 
the  practice  of  the  curia  regis ;  it  was  the  sheriff  who 
carried  that  law  into  execution.  It  was  there,  too,  that  all 
elected  members  of  parliament  were  returned;  for  the 
citizen  and  the  burgess,  though  elected  in  his  city  or  borough, 
was  returned  by  indenture  made  with  the  sheriff  in  the 
shire  court.  The  sheriff,  as  the  local  agent  of  the  central 
government,  received  and  returned  the  writs  that  emanated 
from  the  same  monarchical  authority.  The  members  came 
to  Westminster  not  as  sent  from  sovereign  constituencies, 
but  as  summoned  by  a  sovereign  lord ;  they  attended  not  as 
delegates  with  imperative  mandates  to  do  what  their  con- 
stituents told  them,  but  as  the  unfortunate  and  unwilling 
persons  selected  by  their  fellows  to  carry  out  the  require- 
ments of  the  crown.  Their  powers  came  from  above  and 
not  from  below,  and  their  position  was  nearer  to  that  of 
those  persons  selected  for  service  under  Militia  Ballot 
Acts  than  to  that  of  plenipotentiaries.  Parliament  in  its 
origin  had  less  to  do  with  the  theory  that  all  power  emanated 
from  the  people  than  with  the  fact  that  all  people  held  their 
land  directly  or  indirectly  from  the  crown,  and  were  bound 
by  a  corresponding  obligation  to  obey  its  writs  of  summons 
and  carry  out  its  behests.  It  was  the  crown  that  put 
ad  faciendum  in  their  writs  of  summons,  and  it  was  the 
business  of  the  crown  they  had  to  transact. 

The  crown  by  means  of  parliaments  thus  imposed  a  bond 
of  unity  upon  the  shires,  and  it  was  probably  because  there 
was  only  one  curia  regis  and  one  king's  council  that  there 
was  only  one  parliament.  Fortunately  for  England  her 
administrative  unity  was  achieved  before  her  popular 
representation.  Even  so,  had  parliament  been  merely  a 
system  of  estates,  and  had  its  original  business  been  the 
granting  of  taxes,  local  patriotism  might  have  insisted  on 
local  parliaments,  where  men  could  grant  what  they  had  to 
grant  without  a  troublesome  journey  to  Westminster.  But 
their  business  was  with  a  single  series  of  national  courts 
of  law,  king's  bench,  exchequer,  and  common  pleas,  sitting 
in  common  session.     On  occasion,  at  great  inconvenience, 


I40  THE  EVOLUTION  OF  PARLIAMENT 

this  session  was  held  elsewhere  than  at  Westminster,  and 
wagons  of  records  and  other  essentials  wended  their  way  to 
Nottingham,  York,  or  Carlisle.  But  the  greater  grew  the 
bulk  of  these  records  and  the  more  specialized  the  machinery 
of  government,  the  more  serious  was  the  inconvenience  of 
migration,  and  except  in  1282  the  experiment  of  a  divided 
parliament  was  never  tried. 

Englishmen  from  every  shire  were  therefore  brought 
together,  generally  at  Westminster,  once  or  more  every 
year.  It  was  not  less  important  that  they  were  gathered 
from  various  classes,  and  almost  coerced  into  common 
deliberation  on  common  objects ;  for  division  between  class 
and  class  is  not  less  fatal  to  national  unity  and  self- 
government  than  division  between  province  and  province. 
Assuredly  it  was  social  rather  than  local  separatism  that 
explains,  if  it  does  not  also  excuse,  both  the  weight  of 
Bourbon  despotism  and  the  savagery  of  the  French  Revolu- 
tion. For  when  class  cannot  act  with  class,  no  public 
opinion  is  possible  and  therefore  no  self-government;  the 
necessary  result  is  a  common  despotic  authority,  and  when 
that  despotic  authority  falls  before  revolution,  the  only 
check  is  removed  from  class  hatred,  which  arises  from  lack 
of  co-operation,  and,  in  its  turn,  breeds  suspicion  and  distrust. 
Every  class  in  France  during  the  first  French  Revolution 
was  ready  to  believe  that  it  was  betrayed  and  that  other 
classes  were  bought  with  Pitt's  gold,  because  all  classes  in 
France  were  strangers  to  one  another.  Similar  accusations, 
even  if  made,  have  seldom  been  believed  in  England,  because 
all  classes  know  something  about  one  another;  and  that 
knowledge  has  come  from  centuries  of  co-operation  between 
diverse  classes  in  local  and  national  government.  It  was 
not  for  nothing  that  the  shire  court  was  called  a  community, 
and  the  house  of  commons  the  community  of  communities. 
The  house  of  commons  is  not,  indeed,  and  never  was,  a 
haven  of  peace;  feeling  runs  high  and  language  is  tem- 
pestuous; but  when  one  leader  accuses  another  of  having 
no  principles,  it  is  not  because  they  belong  to  different 
classes  or  have  different  codes  of  honour,  but  because  they 


PARLIAMENT  AND  NATIONALISM  141 

belong  to  different  parties  and  have  to  observe  the  conven- 
tions of  party  conflict.  The  gulf  is  easily  closed  at  times 
of  crisis  and  easily  passed  by  individuals  whenever  they  feel 
disposed. 

The  absence,  or  rather  the  confusion  of  class  distinctions, 
which  dates  from  before  the  Norman  Conquest,  was  con- 
firmed by  parliament.  The  "  estates  "  of  which  we  read 
in  its  "Rolls"  had  little  of  caste  rigidity;  the  judges, 
for  instance,  are  called  an  estate,  but  in  England  judicial 
office  never  became  hereditary,  as  in  France,  and  such 
great  offices  of  state  as  did  become  hereditary  soon  lost 
their  importance.  Prelacy  also  is  called  an  "  estate,"  but 
prelacy,  like  the  judiciary,  was  always  a  career  that  was 
open  to  talent.  Nor  was  there  any  demarcation  of  birth 
between  the  knights  and  bannerets,  who  sat  in  the  house  of 
commons,  and  the  barons,  who  sat  in  the  house  of  lords. 
Elected  knights  and  bannerets  were  often  '*  chivalers " 
and  were  commonly  called  nobles;  there  were  "barons" 
of  the  Cinque  Ports  and  of  the  exchequer  who  were  not 
"  peers  of  the  realm,"  and  the  distinction  between  the 
**  nobility  "  and  the  gentry  of  England  in  the  fourteenth 
century  was  as  vague  as  is  to-day  the  meaning  of  gentle- 
man. Even  the  serio-comic  distinction,  made  by  the  College 
of  Arms  between  those  who  have  inherited  or  bought  the 
right  to  bear  arms  and  those  who  have  not,  had  not  been 
invented.  Co-operation  and  community  of  sentiment  were 
thus  comparatively  easy;  and  the  separatist  tendencies  of 
deliberation  by  "  estates  "  were  checked  by  the  common 
action  which  follov/ed  it  in  the  parhament  chamber.  In 
1332  we  read,  for  instance,  that  the  estates  first  answered 
separately  et  puis  tons  en  commune  ;  ^  and  although  acts  of 
parliament  are  now  made  law  by  the  royal  consent  given 
in  what  has  come  to  be  called  the  house  of  lords,  the 
presence  of  the  Speaker  and  some  of  the  commons,  which 
is  always  required,  still  bears  evidence  to  this  common 
action  of  all  the  estates.  It  was  in  parliament  that  differ- 
ences of  local  and  class  sentiment  had  to  be  accommodated 

1  Rot.  Pari.,  ii.  67. 


142  THE  EVOLUTION  OF  PARLIAMENT 


1 


and  fashioned  into  a  national  determination ;  and  the  result 
was  effected  more  and  more  by  mutual  interchange  of  views, 
less  and  less  by  the  arbitrament  of  a  superior  authority. 
Far  more  of  the  work  of  parliament  was  done  by  conference 
in  the  Painted  Chamber  or  elsewhere  than  was  the  case 
after  the  amalgamation  of  the  various  estates  and  the 
severance  of  parliament  into  two  houses. 

The  fluidity  of  medieval  ideas  about  "  estates  "  facilitated 
the  unifying  work  of  the  crown  in  parliament.  Their  number 
and  the  vagueness  of  their  delimitation,  which  depended 
more  upon  royal  writ  than  upon  any  question  of  status, 
hindered  the  adoption  of  the  continental  theory,  that  the 
assent  of  each  estate  was  essential  to  legislation.  It  is  true 
that  phrases  expressing  the  assent  of  the  lords  spiritual 
and  temporal  and  the  commons  in  parliament  assembled 
came  to  be  customarily  used  in  acts  of  parliament;  but 
it  is  certain  that  their  employment  had  not  become  essential 
by  the  end  of  the  fifteenth  century,  and  a  great  deal  of 
legislation  was  passed  as  late  as  the  reign  of  Henry  VII 
without  any  further  testimony  to  its  legality  than  the  fact 
that  it  had  been  enacted  by  the  king  in  parliament.^  More- 
over, the  "  assent  of  the  lords  spiritual  and  temporal  " 
did  not  mean  their  several  assent,  and  the  validity  of  the 
statutes  of  provisors  and  praemunire,  as  well  as  of  Elizabeth's 
acts  of  supremacy  and  uniformity,  depends  upon  a  repudia- 
tion of  the  theory  that  the  assent  of  the  lords  spiritual 
was  requisite  for  such  legislation.  For  no  other  "  estate  " 
has  the  claim  ever  been  made.  The  assent  of  the 
lords  was  sought,  not  because  they  were  one  or  two 
**  estates,"  but  because  they  were  consiliarii  nati  oi  the 
crown.  The  assent  of  the  commons  was  claimed  as  neces- 
sary not  on  the  ground  that  they  were  an  estate,  but  because 
they  were  the  communitas  communitatum. 

^  Gf.  my  Reign  of  Henry  VII,  vol.  i.  p.  xxxii,  iii.  199-200.  A  more 
scientific  study  of  the  development  of  legislative  forms  is  badly  needed. 
Even  the  editors  of  the  Statutes  of  the  Realm  have  sometimes  pre- 
ferred one  MS.  of  a  statute  to  another,  on  the  ground  that  it  embodied 
modern  legislative  phraseology,  although  that  fact  is  evidence  of  its 
later  date.  The  stereotyping  of  this  phraseology  has  been  considerably 
ante-dated,  and  the  constitutional  importance  of  the  middle  ages  has 
been  magnified  by  attributing  to  them  not  a  little  modem  achievement. 


PARLIAMENT  AND   NATIONALISM  143 

Taxation  was,  of  course,  a  different  matter.  For  the 
ordinary  revenues  of  the  crown,  such  as  feudal  aids,  regular 
customs,  and  so  forth,  no  consent  was  necessary ;  they  were 
"  the  king's  own,"  and  he  was  not  only  entitled  to  have 
them,  but  expected  to  live  on  them.  Other  taxes  were 
matters  of  voluntary  grant,  and  their  history  is  bound  up 
with  the  gradual  growth  of  the  right  of  the  majority  to 
bind  the  individual.  Peter  des  Roches,  in  Henry  Ill's  reign, 
successfully  claimed  immunity  from  a  tax  on  the  ground 
that  he  as  an  individual  had  not  consented  to  its  levy. 
We  have  no  knowledge  of  the  important  process  by  which 
this  extreme  view  of  the  rights  of  "  liberty  and  property  " 
was  surrendered,  and  the  right  of  an  "  estate  "  to  bind  its 
individual  members  by  a  majority  vote  was  established. 
The  principle  had  been  recognized  in  Magna  Carta,  and 
taxation  by  "  estates  "  was  the  regular  practice  in  medieval 
parliaments.  It  was  but  slowly  that  taxation  was  national- 
ized :  each  estate  made  its  own  grant,  and  no  estate  could 
bind  any  other.  But  the  "  estates  "  which  voted  taxes 
were  limited  in  number ;  the  judges  did  not  tax  themselves 
separately,  nor  did  the  prelates,  who  taxed  their  temporaries 
with  the  temporal  peers  and  their  spiritualties  in  convoca- 
tion. On  the  other  hand,  the  merchants,  who  were  not  an 
estate  in  parliament,  often  arranged  their  own  taxation. 
Nor  did  the  class-taxes  that  were  voted  correspond  with 
this  or  any  other  division  of  estates  :  the  taxes  granted  by 
the  knights  of  the  shires  were,  like  those  granted  by  the 
lords  temporal  and  the  lords  spiritual  in  parliament,  mainly 
taxes  on  land;  citizens  and  burgesses  for  the  most  part 
granted  taxes  on  chattels  or  moveables,  while  merchants 
paid  on  their  merchandize.  But  the  original  distinction 
in  kind  between  danegeld,  carucage,  tallage  and  so  forth 
was  passing  away  with  the  change  of  land  from  a  source  of 
men  into  a  source  of  wealth,  the  acquisition  by  tenants- 
in-chief  of  vast  flocks  of  sheep,  and  the  purchase  of  land 
by  citizens  and  burgesses.  The  effect  of  this  confusion  was 
to  break  down  the  system  of  class  taxation  :  each  estate 
would  have  to  grant  and  pay  various  kinds  of  taxes,  and 
while    each    continued    for    a    time  to    grant    its    own. 


144  THE  EVOLUTION  OF  PARLIAMENT 

the  development  of  common  action  in  the  commons' 
house  led  to  common  taxation.  The  knights  join  with 
the  town  representatives,  and  together  they  succeed  in 
depriving  the  merchants  of  the  right  of  separate  taxa- 
tion. The  church  consolidated  its  claim  to  grant  all 
its  taxes,  temporal  as  well  as  spiritual,  in  convocation 
and  to  collect  them  itself ;  ^  while  the  peers,  in  return 
for  their  legislative  share  in  general  finance,  acquiesced  in 
the  taxation  of  their  possessions  by  grants  originating  in 
the  commons.  Taxation  was  thus,  by  the  end  of  the  middle 
ages,  a  national  act,  except  in  so  far  as  the  church  was 
concerned  :  its  taxes  were  granted  in  two  provincial  con- 
vocations; the  laity  were  all  taxed  together  by  act  of 
parliament.  The  grant  for  all  is  made  by  the  commons 
with  the  consent  of  the  lords;  but  it  takes  the  form  of  a 
statute,  and  the  sanction  behind  it  partakes  less  and  less 
of  the  nature  of  a  gift  by  the  representatives  of  those  who 
have  to  pay,  and  more  and  more  of  the  authority  of  a 
sovereign  legislature.  In  taxation,  as  in  other  matters,  the 
"  estates  "  become  one,  which  is  called  the  state,  and  national 
unity  takes  the  place  of  class  diversity. 

A  similar  process  affected  the  growth  of  legislation.  Before 
parliaments  existed,  the  granting  of  charters  by  the  crown 
had  exhibited  the  same  tendency  to  expand  from  individual- 
ism and  particularism  to  collectivism.  The  earliest  charters 
are  to  individual  persons  or  boroughs;  then  come  charters 
to  classes,  such  as  tenants-in-chief  and  merchants,  and 
finally  the  great  charter,  which  at  any  rate  mentions  all 
classes  of  the  community.  The  confirmation  of  the  charters 
by  Edward  I  marks  the  culmination  of  the  charter  and  the 
point  at  which  the  charter  merges  into  parliamentary  legisla- 

1  See  my  Reign  of  Henry  VII,  ii.  39-43.  The  law  does  not,  however, 
appear  to  have  been  clear  on  the  matter.  In  1480  the  judges  held  that 
grant  by  the  commons  was  valid  without  the  consent  of  the  lords  {Year 
Book,  21  Ed.  IV.  p.  48;  Hallam,  Middle  Ages,  ed.  1878,  iii.  108  n.). 
Possibly  anti-clericalism  assisted  their  decision,  for  the  validity  of  the  grant 
was  contested  by  the  church  in  the  interest  of  some  property  that  had 
been  left  it.  So  long  as  lords  and  commons  made  separate  grants,  the 
assent  of  the  lords  would  not  be  necessary;  it  was  different  when  lords 
and  commons  were  taxed  by  the  same  grants  and  when  taxation  took  a 
definite  legislative  form. 


PARLIAMENT  AND  NATIONALISM  145 

tion.  Here,  too,  the  individual  petition  comes  first,  and 
gradually  merges  into  petitions  which  are  common,  except 
that  the  church  is  reserved.  It  is  not,  of  course,  that  all 
legislation  is  general  or  public,  but  all  legislation  is  backed 
by  the  commons.  The  distinction  is  clearly  marked  in  the 
last  volume  of  the  "  Rolls  of  Parliaments."  About  half 
the  petitions  are  common;  the  rest  are  presented  by  the 
commons  ex  parte,  on  behalf  of  some  individual  person  or 
corporation.^  The  former  become  public,  the  latter  private 
acts;  and  this  familiar  differentiation  is  first  adopted  in 
the  sixteenth-century  statutes,  although  the  principle  of 
discrimination  is  not  that  adopted  to-day  :  and  grants 
of  taxes  to  the  crown  are  often,  in  Henry  VH's  reign,  classed 
as  private  acts.  Still  they  are  all  acts  done  in  a  national 
parliament,  and  that  is  the  recognized  method  of  making 
secular  law  at  the  end  of  the  middle  ages. 

This  nationalization  of  politics  was  fatal  to  the  medieval 
conception  of  jurisdiction  as  something  inherent  in  lordship 
of  the  land ;  and  by  a  process  which  has  never  been  traced 
in  detail  parliaments  developed  a  practice  of  making 
their  legislation  applicable  tajn  infra  qicam  extra  lihertates 
within  as  well  as  outside  liberties.  Gradually  the  distinc- 
tions between  one  franchise  and  another,  and  between  all 
franchises  and  the  remainder  of  the  realm,  were  whittled 
away ;  and  ideas  of  legal  uniformity  and  of  equality  before 
the  law  begin  to  find  expression  in  phrases  that  meant  more 
than  the  old  and  empty  platitude  omnes  homines  natura 
cBqiiales  sunt.  The  King  of  England,  the  Emperor  Charles  V 
was  told  in  1551,  had  but  one  law  by  which  to  rule  all  his 
subjects,^  and  that  was  law  made  in  parhament.  Nothing 
could  be  less  medieval :  a  contour  map  of  medieval  England 
indicating  the  various  heights  of  jurisdictional  privilege  would 
have  revealed  an  infinite  diversity  of  inequality;  and  a 
vast  and  patient  work  of  levelling  was  required  before  the 
king's  writ  ran  throughout  the  land  and  reduced  its  people 
to  equality  in  his  courts  of  law.     But  the  equafization  of 

^  E.g.  Rot.  Pari.,  vi.  290-2,  294,  298,  331. 

'^  Calendar  State  Papers,  For.,  Edward  VI,  p.  137. 


146  THE  EVOLUTION  OF  PARLIAMENT 

liberty  by  means  of  parliament  must  be  reserved  for  separate 
treatment,  and  so  must  the  nationalization  of  the  church,  the 
greatest  of  medieval  liberties  and  the  latest  of  the  spheres 
into  which  parliament  ventured  to  intrude. 

Parliament  was,  of  course,  no  more  than  the  instrument 
of  comprehensive  social,  economic,  and  political  forces.  It 
had  Httle  to  do  directly  with  the  nationahzation  of  language 
and  hterature,  without  which  there  could  have  been  no 
national  state,  though  it  can  hardly  be  doubted  that  the 
association  of  men  from  all  parts  of  the  country  in  common 
discussion  at  Westminster  assisted  the  adoption  of  a 
common  standard  of  speech  and  common  habits  of  thought. 
Parliamen  t,too,had  something  to  do  with  the  nationalization 
of  defence,  whereby  that  obligation  was  converted  from  a 
burden  imposed  upon  locality  and  class  into  a  common 
duty.-^  Resistance  to  this  development  was  long  in  dying 
down.  Cornwall,  in  Henry  VIFs  reign,  rebelled  rather  than 
acknowledge  its  liability  to  taxation  for  the  defence  of  the 
Scottish  borders;  and  Hampden's  case  against  Charles  I 
was  largely  based  on  evil  precedents  which  distinguished 
between  the  obligations  of  inland  and  those  of  maritime 
counties  for  naval  defence.  Similarly,  the  northern  counties 
were  under  special  liability  for  the  defence  of  the  borders, 
and  wer6  entitled  to  corresponding  privileges.  Particularism 
was  of  the  essence  of  the  middle  ages,  and  it  was  only 
broken  down  by  the  common  spirit  developed  in  parliaments 
and  by  the  common  taxation  they  provided  for  national 
objects. 

Every  national  state  has  necessarily  undergone  processes 

^  Particularism,  however,  often  found  expression  even  in  parliament. 
In  1339,  for  instance,  the  commons  disclaimed  all  obligation  for  the 
protection  of  the  Scottish  Marches  and  the  keeping  of  the  Narrow  Seas 
{Rot.  Pari.,  ii.  103),  If  the  Wardens  required  assistance,  it  should  be 
provided,  the  commons  contended,  by  the  great  council,  without  charging 
"  la  commune  " ;  and  as  for  naval  defence,  it  was  the  business  of  the 
barons  of  the  Cinque  Ports,  who  for  that  purpose  possessed  "honours" 
above  all  commoners  of  the  land,  did  not  contribute  to  the  aids  and 
charges  touching  the  land,  and  took  endless  profits  arising  from  the  sea. 
Therefore  they  should  guard  the  sea  as  "  la  commune  "  did  the  land, 
without  -p^ix,  as  other  towns  and  havens  which  had  navies  were  bound 
to  do  {ibid^,  ii.  105). 


PARLIAMENT  AND  NATIONALISM  147 

of  nationalization.  In  some  the  process  has  been  sudden  and 
revolutionary,  and  the  fusion  has  taken  the  form  of  an 
explosion.  In  others  the  nationalization  has  proceeded  on 
purely  monarchical  lines  and  has  thus  produced  a  despotism. 
In  England  the  process  was  slow  and  parliamentary.  Had 
England  developed  a  system  of  estates  independent  of 
its  judicial  pariiament,  had  its  representative  systems  and 
its  parliaments  been  provincial  and  manifold,  as  in  France, 
the  bond  of  national  unity  could  only  have  been  forged  here, 
as  abroad,  by  the  growth  of  royal  authority.  The  union 
would  have  been  personal,  not  parliamentary  :  it  would  have 
resembled  the  unions  between  France  and  Brittany,  or 
England  and  Scotland  in  1603,  and  not  that  between  England 
and  Scotland  in  1707;  and  where  the  bond  of  union  is  the 
person  of  the  sovereign,  liberty  cannot  be  safe;  because 
for  the  sake  of  unity  men  will  strengthen  the  bond  of  union 
and  thus  enhance  the  authority  of  the  crown. 

Charles  I  might  have  succeeded  could  he  have  played 
off  a  parliament  of  the  north  against  another  of  the 
south ;  and  a  diversity  of  parliaments  would  have  rendered 
each  one  of  them  weaker  against  the  crown,  as  well  as 
less  national  in  its  outlook.  When  the  estates-general  of 
France  had  sunk  into  abeyance,  the  farlement  of  Paris 
aspired  to  play  the  part  of  its  English  namesake.  It  failed 
because,  save  for  the  name,  the  two  bodies  had  little  in 
common.  The  parlement  of  Paris  was  but  one  of  many 
French  parlements,  and  it  had  long  excluded  all  representa- 
tive elements  from  its  closing  doors  of  privilege.  In  England 
all  the  estates  had  entrenched  themselves  in  the  high  court 
of  parliament,  and  had  used  its  judicial  machinery  of 
impeachment  and  attainder  with  deadly  effect  against  the 
royalist  champions.  The  English  estates  were  the  grand 
jury  of  the  nation,  because  they  sat  in  a  parliament  which 
was  a  court  of  law.  There  was  no  national  presentment  of 
offenders  in  France,  because  the  parlements  excluded  the 
estates,  just  as  lower  French  courts  extruded  the  jury. 
The  time-honoured  maxim  that  union  is  strength  has  no- 
where   been    illustrated    in  such  a  variety  of  aspects   as 


148  THE  EVOLUTION  OF  PARLIAMENT 

in  the  history  of  the  English  pariiament.  It  has  embodied 
a  national  union  of  law  and  politics,  of  class  and  class, 
of  province  and  province — a  union  slowly  and  painfully 
achieved  in  the  course  of  ages,  and  not  under  the  sudden 
stress  of  emergency.  In  part  the  creation  and  in  part 
the  creator  of  English  nationality,  the  English  parliament 
is  the  essence  of  modem  England. 


CHAPTER  VIII 

THE  GROWTH  OF  REPRESENTATION 

The  fundamental  difference  between  the  English  and 
other  parliaments  lies,  we  have  seen,  in  the  fact  that  it 
combines  a  system  of  popular  representation  with  a  high 
court  of  justice.  Unlike  all  other  courts  of  justice,  it  is 
therefore  representative,  and  unlike  all  other  representative 
assemblies,  it  is  a  court  of  justice.  ^Ewrther^iUe  court  was 
also  the  council,  and  a  parliament  was  a  joint  session  of 
executive,  judicature,  and  legislature.  This  connexion 
between  the  governing  and  representative  bodies  was  indis- 
pensable to  national  democracy.  City-states  can  govern 
themselves  by  direct  action  without  representation.  National 
states  can  be  maintained  without  representation,  but 
without  it  they  cannot  govern  themselves  or  determine 
national  policy.  Aristotle's  maxims  about  the  limited  size 
of  a  state  are  sufficiently  familiar;  but  they  are  all  based 
on  the  assumption  that  a  state  cannot  be  self-governing 
unless  the  citizens  govern  directly,  and  themselves  fulfil  the 
functions  of  legislators,  judges,  generals,  and  admirals.  Ac- 
cording to  the  Athenians,  the  state  required  the  whole  life  of 
its  citizens ;  they  were  to  be  ready  to  undertake  any  political 
duty,  and  every  other  claim  on  their  time  was  subordinate. 
A  man  who  had  to  earn  his  living  should  be  precluded  from 
citizenship,  because  he  lacked  time  and  energy  for  public 
activity ;  and  the  occasional  exercise  of  a  vote  at  the  polling 
booths  would  have  seemed  to  them  a  poor  qualification  for 
citizenship.  This  conception  in  itself  was  fatal  to  modern 
ideas  of  democracy,  because  the  mass  of  producers  were 
excluded  from  political  rights  and  duties;   in  Athens^they 

149 


I50  THE  EVOLUTION  OF  PARLIAMENT 

were  largely  slaves,  and  Athenian  democracy  was  really  an 
aristocracy  based  upon  the  most  odious  of  class  distinctions. 
No  doubt  it  rendered  a  high  ideal  practicable  for  the  favoured 
few,  who  were  expected  to  realize  themselves  and  attain 
their  highest  individual  development  in  the  service  of 
the  state.  But  even  the  capacity  of  virtue  was  denied  to 
the  slave  and  the  mechanic;  an  impassable  gulf  was  fixed 
between  them  and  the  citizen;  most  men  were  slaves  by 
nature,  and  such  they  must  remain.  The  non-Greek  peoples 
were  called  barbarians  and  excluded  from  the  scope  of  Greek 
morality. 

The  Romans  were  more  cosmopolitan;  they  disbelieved 
in  this  natural  inequality  of  men,  and  Cicero  thought  that 
all  men  were  capable  of  progress  and  of  virtue.  But  the 
absence  of  any  idea  of  representation  prevented  the  real- 
ization of  these  comparatively  liberal  views  in  the  expanded 
Roman  state.  Rome  as  a  city  could  be  democratic,  but 
not  as  an  empire;  and  the  wider  grew  Rome's  dominion 
the  more  autocratic  grew  its  government.  The  more  its 
sway  expanded,  the  more  did  its  governing  class  contract. 
Direct  popular  participation  in  politics  can  never  be  more 
than  municipal  in  scope,  and  the  city-democracy  that  tries 
to  govern  an  empire  fails  in  its  task  and  incidentally  ceases 
to  be  a  democracy.  Athens,  Rome,  Venice  all  point  to 
the  incompatibility  of  imperium  et  lihertas  when  either  is 
divorced  from  the  principle  of  representation. 

The  evolution  of  this  principle  has,  therefore,  provided 
an  escape  from  the  dilemma  upon  either  horn  of  which  every 
ancient  state  was  sooner  or  later  impaled,  has  rendered 
possible  the  national  democratic  state,  and  has  reconciled 
liberty  and  empire;  and  the  credit  for  this  discovery  has 
been  claimed  for  political  or  ecclesiastical  theorists  of  the 
middle  ages.  Representation  has  been  regarded  as  a  great 
democratic  principle  first  elaborated  and  applied  in  the 
organization  of  the  friars  and  particularly  of  the  Dominican 
Order  in  the  thirteenth  century,  and  its  adoption  for  parlia- 
mentary purposes  has  been  ascribed  to  the  influence  which 
Dominican  confessors  exerted  over  the  minds  of  English 


THE  GROWTH  OF  REPRESENTATION  151 

kings  and  statesmen. ^  The  part  played  by  theorists  in  the 
practical  development  ol  human  affairs  is  a  question  upon 
which  theorists  are  apt  to  differ  from  other  people;  but 
probably  the  theorist,  especially  if  he  has  been  fortunate 
enough  to  possess  a  great  gift  of  literary  expression,  has 
received  more  than  his  share  of  responsibility  for  the  good 
and  evil  in  history.  Machiavelli  is  believed  to  have  cor- 
rupted the  politics  of  the  sixteenth  century,  Locke  to  have 
prepared  men's  minds  for  the  Revolution  of  1688,  and 
Rousseau  to  have  stimulated  that  of  1789.  It  is  well  to 
remember  that  Machiavelli's  Prince  was  not  written  until 
real  princes  had  given  the  most  striking  manifestations  of 
his  principles,  that  Locke's  Two  Treatises  were  published 
two  years  after  the  Revolution  of  1688,  and  that  Rousseau's 
resonant  phrases  were  borrowed  from  ancient  Roman  law77 
It  was  the  aptness  of  these  doctrines  to  the  conditions  of  the 
time  that  gave  them  their  vogue,  but  they  did  not  create 
the  conditions,  and  in  other  circumstances  would  have 
fallen  on  stony  ground.  The  soil  is  not  less  important  for 
the  harvest  than  the  seed,  and  in  the  case  of  political 
ideas  the  seed  is  in  the  air,  blown  by  the  wind,  and  not 
sown  by  the  hands  of  individual  men. 

Representation  is,  moreover,  an  ambiguous  word  which 
needs  to  be  defined  before  we  can  deal  with  its  development. 
It  does  not  necessarily  imply  election.  When  Emerson 
wrote  his  Representative  Men  he  said  nothing  about  a 
popular  vote ;  nor  was  Hobbes  thinking  about  the  franchise 
when  he  described  the  sovereign  as  the  representative  of 
all  the  citizens.  Charles  I  on  the  scaffold  claimed  to  be  the 
true  representative  of  his  people;  and  the  house  of  lords 
has  not  infrequently  made  the  same  claim  against  the  house 
of  commons.  In  Germany  after  1815,  when  the  constitu- 
tion of  various  German  states  was  under  discussion,  it  was 
contended  that  the  peasantry  needed  no  special  representa- 
tion because  they  were  adequately  represented  by  their 
landlords ;  but  there  was  no  suggestion  that  landlords  should 
be  elected  by  their  tenants.     Nor  does  election  necessarily 

*  Cf.  E.  Barker,  The  Dominican  Order  and  Convocation,  1913- 


152  THE  EVOLUTION  OF  PARLIAMENT 

mean  popular  election  :  the  Calvinist  commonly  talks  about 
the  elect,  but  they  are  not  chosen  by  ballot.  Election  does 
not,  in  the  middle  ages,  reveal  the  person  of  the  elector,  and 
means  no  more  than  selection  by  the  persons  authorized  to 
select.  It  is  a  matter  of  common  knowledge  that  knights 
of  the  shire  were  selected  in  the  county  court,  but  by  whom 
they  were  really  chosen  is  merely  a  matter  of  surmise. 

It  is  idle  to  seek  the  origin  of  representation  in  its  vaguer 
sense;  for  the  representation  of  states  by  their  govern- 
ments and  ambassadors  is  almost  co-eval  with  the  state 
itself,  and  when  Hobbes  writes  of  the  sovereign  representa- 
tive he  is  expanding  the  Roman  juristic  maxim  quod  principi 
placuit  legis  hahet  vigor  em  .  .  .  utpote  .  .  .  populus  ei  et  in  eum 
omne  suum  imperium  et  potestatem  conferat.  Caesar  was  omni- 
competent because  Caesar  was  the  repository  of  every  citizen's 
powers ;  he  was  the  universal  agent,  the  representative  of  all. 
It  was  in  this  sense  that  the  feudal  lord  represented  his 
tenants  and  that  the  priest  and  four  "best"  men  represented 
the  village  community  in  the  hundred  and  shire-moots ;  and 
it  is  only  in  this  sense  that  parliaments  were  representative 
during  the  earlier  periods  of  their  existence.  Modern  ideas 
of  representation  assume  that  the  representative  is  bound 
by  the  will  of  the  represented,  but  the  will  of  the  people  is 
a  modern  fact  which  largely  partakes  of  fiction.  There 
seems  in  the  middle  ages  to  have  been  a  total  absence  of 
direction  and  instructions  from  constituencies  to  their 
members.  Election  promises  were  unknown,  and  they  appear 
in  their  earliest  form  in  sixteenth- century  undertakings  on 
the  part  of  candidates  to  serve  without  exacting  the  wages 
their  constituents  were  legally  bound  to  pay.  They  were 
elected  to  bind  their  constituents,  and  not  to  be  bound  by 
them;  they  were  to  come  empowered  to  execute  the  pro- 
posals of  the  crown,  and  not  to  impose  upon  the  crown  the 
proposals  of  their  constituents.  The  growth  of  the  popular 
will  is  the  most  important,  obscure,  and  neglected  content 
of  English  domestic  history.  It  takes  place  behind  and 
under  the  forms  of  representative  government ;  but  the  form 
of  government  no  more  reveals  its  controlling  power  than 


THE   GROWTH  OF   REPRESENTATION  153 

the  structure  of  a  ship  tells  us  whether  it  is  run  by  the  cap- 
tain or  the  crew,  and  our  representative  pariiament  has  been 
the  instrument  in  turn  of  king,  lords,  and  commons.  It  is 
easy,  therefore,  to  exaggerate  the  importance  of  representa- 
tive forms  in  the  middle  ages.  On  the  other  hand,  it  should 
not  be  ignored;  the  development  of  the  machinery  of  the 
constitution  was  important  before  the  people  had  learnt  to 
drive  it,  and  no  democracy  has  ever  constructed  a  workable 
constitution  until  it  has  been  taught  the  elements  of 
politics. 

The  earliest  forms  of  English  representation  appealed  to 
the  interests  of  the  government  and  the  selfishness  of  the 
majority  rather  than  to  popular  ambition.  The  "  best  " 
men,  who  were  required  by  royal  ordinance  to  attend  the 
local  courts,  were  certainly  not  elected ;  they  may  have  been 
a  sort  of  local  hereditary  aristocracy,  like  the  twelve  lawmen 
of  Chester  and  Lincoln,  of  whom  we  read  in  Domesday. 
Under  the  Norman  and  Angevin  kings  they  were  probably 
the  holders  of  the  "  best "  tenements,  and  the  obligation  to 
do  suit  at  the  county  court  was  attached  as  a  condition  to 
certain  holdings.  Representation  was,  in  fact,  an  unpleasant 
incident  of  feudal  service.^  This  is  the  popular  attitude 
in  the  middle  ages  towards  parliament,  as  towards  the  shire 
court;  it  is  not  a  question  of  who  is  anxious  to  serve,  but 
of  who  is  obliged  to  attend. 

The  business  to  be  done  is  also  that  of  the  crown;  it  is 
the  king's  writs  by  which  the  suitors  are  summoned,  and  it 
is  mainly  the  "  pleas  of  the  crown  "  that  are  heard  in  the 
county  court.  No  doubt  humble  folk  are  interested  in 
having  justice  done,  but  it  is  the  crown  which  discovers 
that  justitia  magnum  emolumentum.  Justice  is  done  for  the 
sake  of  its  proceeds,  and  representation  is  used  by  the  crown 
for  purposes  of  justice  and  finance.  The  county  court 
consists  of  jurors,  who  represent  the  county ;  ponere  se  super 
patriam  is  to  go  throw  oneself  on  a  jury,  and  the  verdict  of 
the  jury  is  the  county's  act.  It  is  also  upon  the  county  that 
taxation  is  later  imposed,  and  its  re-partition  among  the 
1  See  above,  p.  109. 


154  THE  EVOLUTION   OF  PARLIAMENT 

smaller  communities  is  left  to  the  county  court  or  to  the 
sheriff.  But  attendance  is  all  a  matter  of  service  deter- 
mined by  tenure.  By  a  statute  of  1294  it  is  enacted  that 
no  one  with  less  than  forty  shillings  a  year  in  land  can  be  ^ 
empanelled  on  a  jury  in  the  county  court.^  The  boon  con- 
sists in  the  exemption  of  the  poor ;  but  the  burden  becomes 
in  time  a  franchise.  These  jurors  elect  the  knights  of  the 
shire  in  the  court  to  which  they  are  summoned  for  jury- 
service,  and  in  Edward  I's  statute  we  have  the  origin  of  the 
forty-shilling  freehold  vote.  In  1430  the  vote  has  become 
a  privilege,  and  a  famous  statute  prohibits  its  exercise  by 
those  whom  Edward  I  had  freed  from  jury-service.  The 
important  point  is  that  every  voter  is  first  a  juror  :  he  is 
only  a  voter  because  he  is  a  juror;  he  can  only  enjoy  the 
franchise  because  he  discharges  an  obligation.  The  vote 
is  not  a  matter  of  individual  right,  but  of  duty  to  the 
community. 

The  idea  that  any  one  had  a  right  to  a  vote  would 
have  been  unintelligible  in  the  fourteenth  century,  and  its 
discussion  would  have  seemed  as  irrational  as  the  question 
whether  a  man  has  a  right  to  serve  on  a  jury  to-day.  He 
may  have,  but  the  point  does  not  arise,  because  no  one 
thinks  of  claiming  the  right.  Men  are  more  concerned  with 
their  liability  to  be  summoned;  and  it  was  his  liability  to 
attendance  at  the  shire  court  and  to  election  as  member  of 
parliament  that  troubled  our  medieval  ancestor.  Whether 
he  was  a  baron  liable  to  individual  summons  or  a  knight  or 
a  burgess  liable  to  election,  he  was  anxious  to  escape  the 
liability ;  and  the  constituencies  were  of  like  mind.  Some- 
times a  recorder  was  bound  by  the  terms  of  his  appoint- 
ment to  serve  the  borough  in  parliament  and  thus  relieve 
the  burgesses.  The  two  knights  for  Oxfordshire  who  fled 
the  country  on  their  election  to  parliament  exemplified  a 
common  frame  of  mind  among  the  elected,  and  Torrington, 
which  secured  a  charter  giving  it  perpetual  exemption  from 

1  Rot.  Pari.,  i.  116.  Forty  shillings  had  previously  been  made  the 
limit  of  suits  over  which  the  county  court  had  jurisdiction  (Pollock  and 
Maitland,  ii.  540-1). 


THE  GROWTH  OF  REPRESENTATION  155 

representation  in  parliament,^  typified  the  attitude  of  the 
electors.  The  shires  could  not  expect  such  favours,  and 
their  representation  remained  constant  throughout ;  but  the 
166  cities  and  boroughs  from  which  Edward  I  had  sum- 
moned representatives  to  parliament  had  sunk  to  less 
than  a  hundred  in  the  reign  of  Henry  VI.  The  number  of 
members  was  smaller  than  these  figures  would  indicate,  for 
sometimes,  to  save  expense,  Cornish  and  Devonshire  con- 
stituencies returned  identical  members.^  Local  parsimony 
prevailed  over  national  interest.  Not  only  did  the  borough 
which  evaded  representation  escape  the  liability  for  mem- 
bers' wages,  but  it  got  off  with  lighter  taxation.  Boroughs 
which  were  represented  only  by  the  knights  of  the  shire 
were  taxed  with  the  shires,  and  paid  a  fifteenth,  while 
boroughs  with  representation  of  their  own  had  their  own 
taxation  and  paid  a  tenth.  Parliamentary  ambition  was  a 
feeble  incentive  when  representation  meant  extra  taxation, 
and  when  attendance  at  Westminster  involved  responsi- 
bility without  power  or  profit.  Parliament  was  not  then  a 
career,  and  it  opened  no  paths  to  promotion.  Members  were 
men  of  business  reluctantly  diverted  from  their  private 
affairs  for  occasional  public  service ;  and  the  few  who  aspired 
to  political  eminence  had  to  choose  the  church  or  the  service 
of  the  king  or  of  a  baronial  magnate. 

Representation,  in  fact,  was  nowise  regarded  as  a  means  of 
expressing  individual  right  or  forwarding  individual  interests. 
It  was  communities,  not  individuals,  who  were  represented, 
just  as  it  was  communities  and  not  individuals  who  .were 
taxed  in  parliaments.  The  poll-tax,  when  it  appeared  in 
1380,  was  resented  because  it  was  a  departure  from  the  old 
tenths  and  fifteenths  which  were  levied  on  boroughs  and 

1  Rot.  Pari.,  li.  4596;  Maitland,  Const.  Hist.,  p.  174;  the  exemption 
was  secured  in  1366  and  confirmed  in  1368  {Cal.  Patent  Rolls,  1364-7, 
p.  246,  1367-70,  p.  115).  Edward  III,  in  granting  the  petition  of 
the  men  of  Torrington,  remarked  that  "  vos  ea  occasione  laboribus  et 
expensis  multipliciter  gravati  fuisti,  ad  vestrum  damnum  non  modicum 
et  depressionem  manifestam." 

2  See  J.  J.  Alexander  in  Trans.  Devon.  Assoc,  1910,  xlii.  260.  In  1362 
one  John  Hill  was  returned  for  six  Devonshire  constituencies,  and  John 
Wonard  for  two  Devonshire  and  two  Cornish  seats. 


156  THE  EVOLUTION  OF  PARLIAMENT 

shires  and  were  not  imposed  viritim.  The  re-allotment  of  the 
burden  of  taxation,  like  the  determination  of  the  borough 
franchise,  was  a  matter  for  local  option  and  arrangement; 
and  there  was  the  greatest  variety  in  both  spheres.  The 
statute  of  1430  regulated  the  county  vote  on  a  national 
uniform  principle ;  but  until  1832  no  attempt  was  successful 
to  introduce  uniformity  into  the  borough  franchise.  In 
some  boroughs  the  parliamentary  franchise  was  limited  to 
members  of  the  governing  body,  in  some  to  the  "  freemen  " ; 
in  others  it  was  extended  to  all  who  held  burgage  tenements, ) 
or  even  to  all  who  paid  scot  and  lot.  This  local  diversity 
adds  to  the  difficulty  of  the  discussion  whether  women 
possessed  a  vote  in  the  middle  ages.  That  women  could  sit 
in  parliament  is  certainly  unproved,  and  the  fact  that  the 
husband  of  a  woman  who  held  an  entire  barony  was  liable 
to  a  special  writ  of  summons  implies  that  she  was  exempt. 
The  instances  of  women  appearing  in  parliament,  upon  which 
reliance  has  been  placed,  relate  to  its  judicial  functions,  and 
women  still  frequently  appear  in  courts  of  law.  The  vote, 
it  must  be  remembered,  was  grounded  in  jury-service,  and 
unless  it  can  be  shown  that  women  were  personally  liable 
for  that  and  other  forms  of  service,  there  is  no  reason  to 
suppose  that  they  exercised  a  parliamentary  vote. 

Nevertheless  women  did  occasionally  return,  or  assist  in 
returning  members  to  parliament,  not  because  women's 
right  to  vote  was  admitted,  but  because  it  was  the 
land  rather  than  men  that  parliament  represented,  and 
occasionally  women  held  the  land  upon  which  the  burden 
of  representation  had  been  fixed.  Feudal  service  was 
always  regarded  as  due  from  the  land  rather  than  from  the 
individual  tenant,  and  so  long  as  the  crown  obtained  its 
service  it  cared  little  who  performed  it.  The  liability  was 
first  the  lord's,  who  generally  passed  it  on  to  his  tenants; 
but  if  tenants  were  lacking,  the  obligation  reverted  to  the 
lord.  Thus  by  the  sixteenth  century  the  borough  of  Gatton 
had  lost  all  its  burgesses,  but  retained  its  parliamentary 
obligation  of  service.  The  return  was,  therefore,  made  by 
means  of  indenture  between  the  sheriff  and  lord  of  the 


THE  GROWTH  OF  REPRESENTATION  157 

manor;  and  once,  at  any  rate,  during  the  minority  of  her 
son,  it  was  made  by  Dame  Alice  Copley.  In  dealing  with 
medieval  representation  we  have  always  to  think  in  terms 
of  feudal  service  rather  than  in  those  of  democratic  principle. ' 
The  boroughs  are  represented  because  they  are  collective 
tenants-in-chief  on  the  king's  demesne ;  and  the  shires,  too, 
are  in  a  sense  tenants-in-chief,  in  that  they  "farm"  the 
royal  rights  of  jurisdiction.  Parliament  was  the  king's  head 
court,^  and  it  was  composed  of  those  who  owed  service  to 
the  crown. 

But  the  feudal  form  was  filling  with  the  breath  of  national 
life  and  popular  consciousness,  the  outcome  of  the  fourteenth 
century  and  the  sign  of  the  passing  of  medieval  things.  The 
growth  of  a  national  literature  illustrated  by  Chaucer  and 
still  more  by  Langland,  and  of  a  desire  for  national  expres- 
sion in  religious  thought  exemplified  by  Wycliffe's  works; 
the  substitution  of  a  national  weapon,  the  longbow,  for  the 
mailed  knight  and  the  feudal  castle;  the  development  of 
industry  and  commerce  at  the  expense  of  the  agricultural 
monopoly  of  wealth;  the  triumph  of  national  feeling  over 
local  particularism  during  the  Hundred  Years'  war ;  the  effect 
of  the  mobility  of  labour  in  breaking  down  manorial  isola- 
tion, all  made  themselves  felt  in  the  parliamentary  sphere. 
Classes  that  had  been  ignored  were  forcing  their  way  into 
politics,  and  the  beginnings  of  popular  education  were  foster- 
ing a  wider-spread  national  intelligence.  The  foundation  of 
great  schools  and  colleges  and  the  growth  of  universities  are 
familiar  illustrations  of  this  spirit.  Not  less  significant  was 
the  fact  that  villeins,  although  they  might  be  fined  by  their 
lords  for  so  doing,  were  beginning  to  send  their  children  to 
school.2  Thus  Langland  found  an  audience,  and  the  EngHsh 
people  discovered  itself.   Prosperous  villeins  who  sent  their 

*  This  phrase  was  used  by  James  I  (Prothero,  Select  Statutes,  etc., 
1898,  p.  400),  but  not,  as  implied  by  Dr.  Prothero,  of  the  English 
Parliament.  It  occurs  in  his  Trew  Law  of  Free  Monarchies,  which  dates 
from  1598,  five  years  before  James  became  King  of  England  (see  Mcllwain, 
Political  Works  of  James  I,  Harvard  Univ.  Press,  pp.  xxv,  62). 

^  In  1372  a  customary  tenant  was  fined  heavily  by  his  lord  (who  was 
a  bishop)  for  putting  his  son  to  school  without  the  lord's  leave  (Maitland, 
Collected  Papers,  ii.  399). 


158  THE  EVOLUTION  OF  PARLIAMENT 


n 


sons  to  school  attended  the  county  court  themselves,  and 
contributed  to  the  tumultuary  elections  which  led  to  the 
restricting  statute  of  1430.  Similar  irruptions  into  the  oligar- 
chical circles  of  municipal  government  led  to  corresponding 
restrictions  of  the  municipal  franchise.^  These  restrictions 
were  less  important  and  less  permanent  than  the  movement 
by  which  they  were  provoked,  and  their  significance  lies  in  the 
indirect  evidence  they  provide  for  the  growth  of  a  political 
consciousness  among  the  mass  of  the  population.  It  may 
have  been  a  sign  of  grace  when  the  commons  complained 
in  1436  that  sheriffs  often  returned  members  who  had  not 
been  elected.^ 

Probably  here  we  have  also  the  explanation  of  the  curious 
fact  that  about  1445  the  ebbing  tide  of  parliamentary  repre- 
sentation begins  to  turn,  and  the  number  of  boroughs  return- 
ing members  to  increase.  The  lowest  limit  was  reached  in 
1445,  when  only  ninety-nine  made  returns;  Henry  VI 
added  eight  and  Edward  IV  five.  Henry  VII  apparently 
made  no  change,^  but  under  the  later  Tudors  the  increase 
was  rapid  and  steady.  Later  on  we  shall  see  that  the  attribu- 
tion of  this  increase  to  Tudor  designs  upon  parliamentary 
independence  is  not  a  tenable  theory;  and  even  if  it  were, 
their  attempt  would  illustrate  their  appreciation  of  the 
importance  of  parliamentary  support.  It  is  more  probable 
that  the  creation  of  new  boroughs,  and  restoration  of  parlia- 
mentary representation  to  others  which  had  lost  it,  was  due 
to  a  deeper  national  impulse.  We  have  at  least  one  protest 
from  a  Tudor  secretary  of  state  that  there  were  too  many 
members  already,  a  refusal  to  listen  to  Newark's  petition 
for  representation,  and  a  hint  that  the  government  in  1579 


i  See  my  Reign  of  Henry  VII,  ii.  181-5,  for  restrictions  on  the  borough 
franchise  at  Leicester  and  Northampton. 

2  Rot.  Pari.,  iv.  507. 

3  The  difficulty  of  tracing  accurately  the  growth  of  parhamentary 
representation  is  increased  by  the  defectiveness  of  tlie  lists  of  members 
printed  in  the  Official  Return.  There  are  no  lists  between  1477  and  1529, 
although  research  among  borough  archives  and  elsewhere  may  help  to 
supply  the  deficiency.  Something  may  also  emerge  from  the  neglected 
records  of  the  Crown  Office  recently  transferred  from  Westminster  to  the 
Record  Office. 


THE  GROWTH  OF  REPRESENTATION  159 

contemplated  the  abolition  of  rotten  boroughs.^  The  demand 
for  representation  now  came  from  below,  from  prospective 
electors  themselves  or  from  neighbouring  magnates  seeking 
an  easy  seat  in  the  house  of  commons.  Boroughs  were 
bought  up  in  the  sixteenth  century ;  the  eldest  sons  of  peers 
became  candidates  for  election;  the  proceedings  of  the 
house  were  considered  worth  recording  in  Journals  ;  candi- 
dates offered  to  serve  without  their  wages ;  and  even  bribed 
the  electors,  not  to  escape,  but  to  secure,  election.  Men  no 
longer  fled  the  country  when  elected,  or  transferred  their 
liabilities  to  their  tenants.  A  member  of  parliament  had 
become  an  important  person,  a  seat  in  the  house  an  object 
of  ambition,  and  the  house  itself  a  place  of  political  power. 
The  seats  of  the  mighty  were  filling  with  popular  candidates. 
Elections  were  contested,  and  electors  were  canvassed; 
boroughs  refused  to  accept  neighbouring  magnates'  nominees, 
and  riots  were  not  infrequent.  The  burden  of  representa- 
tion had  become  a  privilege,  because  people  had  grasped  the 
fact  that  through  it  they  could  impose  their  will  on  the  crown, 
instead  of  the  crown  through  it  imposing  its  will  upon  them. 
The  forms  of  the  partnership  remained,  but  the  predomin- 
ance was  changing  hands. 

National  spirit  had  fused  local  prejudices.  Members  are 
regarded  as  serving  their  country  and  not  merely  their  shires 
or  boroughs;  and  residence  ceases  to  be  an  indispensable 
qualification.  The  legal  requirement  stood,  and  the  matter 
was  often  debated  in  the  house;  but  the  national  view 
prevailed  over  the  letter  of  the  law,  and  parliament  was 
saved  from  the  dead  hand  of  medieval  parochialism.  Other 
influences,  no  doubt,  contributed  to  this  result;  insistence 
upon  residence  would  have  defeated  aristocratic  designs  on 
the  commons,  and  have  excluded  many  privy  councillors 

^  T.  V^ilson  to  the  Earl  of  Rutland,  June  17,  1579  (Rutland  MSS., 
Hist.  MSS.  Coram .  i.  117)  :  "I  have  moved  the  Queen  for  the  town  of 
Newark,  and  have  obtained  her  consent  that  the  book  shall  be  engrossed 
by  Mr.  Attorney,  and  all  the  articles  allowed,  save  the  nomination  of 
two  burgesses.  It  is  thought  that  there  are  over  many  already,  and 
there  will  be  a  device  hereafter  to  lessen  the  number  for  divers  decayed 
towns."  Newark  did  not  obtain  parliamentary  representation  until  1673 
{Official  Return,  i.  526). 


i6o  THE  EVOLUTION  OF  PARLIAMENT 

f 

I    of  the  crown.     But  the  substitution  of  landed  gentry  for 

I    timorous  townsmen  stiffened  the  back  of  the  commons,  and 

j     is  definitely  assigned  by  a  Venetian  ambassador  as  the  cause 

1    of  the  recalcitrance  of  one  of  Mary's  parliaments ;  ^  and  even 

j    the  election  of  privy  councillors  testified  to  the  growth  of 

;    popular  influence.     In  Edward  Fs  reign  a  councillor  was 

j    summoned  ex  officio  to  parliaments,  and  a  parliament  was 

a  meeting  between  council  and  estates.     Now,  instead  of 

sitting  ex  officio,  the  privy  councillor  sought  popular  election, 

I    and  in  Thomas  Cromwell  and  William  Cecil  we  have  the 

1    first  striking  examples  of  the  "  old  parliamentary  hand  " ; 

'    both  sat  continuously  in  the  commons  until  they  were  raised 

I     to  the  peerage,  and  both  were  there  in  the  interests  of  the 

L  nation  and  not  in  those  of  their  constituencies.     The  com- 

munitates  have  become  the  communitas,  England  is  one 

whole  instead  of  many  parts,  and  in  politics  and  history  the 

whole  is  greater  than  the  sum  of  all  the  parts.     Out  of 

the  fusion   arises  the  national   patriotism  of    Elizabethan 

England. 

The  sixteenth  century  is  indeed  the  great  period  of  the 
consolidation  of  the  house  of  commons,  and  without  that 
consolidation  the  house  would  have  been  incapable  of  the 
work  it  achieved  in  the  seventeenth.  Under  the  Tudors  it 
becomes  a  compact  and  corporate  unit,  and  acquires  a 
weight  which  makes  it  the  centre  of  parliamentary  gravity. 
Its  transference,  in  Edward  VI 's  reign,  from  the  chapter 
house  to  St.  Stephen's  chapel  ^  brings  it  under  the  same  roof 
as  the  parliament  chamber,  and  provides  ocular  demonstra- 
tion of  its  position  as  an  integral  part  of  parliament.  The 
commons  no  longer  comparent  in  parliamento  by  traversing 
the  street  between  the  abbey  and  parliament  with  the 
Speaker  at  their  head;  they  are  already  "  in  parhament  " 
when  they  meet  by  themselves,  and  their  domestic  discus- 
sions become  parliamentary  instead  of  extra-parliamentary 
proceedings.  Each  representative  is  now  a  limb,  a  "  mem- 
ber "  of  parliament,  a  phrase  which  appears  in  the  fifteenth 

^   Venetian  Calendar,  vi.  251. 
2  See  below,  p.  333. 


THE   GROWTH  OF  REPRESENTATION  i6i 

century,^  was  used  by  Henry  VIII  when  vindicating  the 
privileges  of  the  commons,  and  gradually  secured  a  popular 
vogue ;  and  a  prominent  member  is  described  in  Elizabeth's 
reign  as  "  the  great  parliament  man."  The  house  is  a 
national  representative  :  every  Englishman  is  "  intended," 
in  Sir  Thomas  Smith's  phrase,  to  be  present  either  in  person 
or  by  proxy ;  and  the  house  derives  its  authority  from  the 
fact  that  it  embodies  the  will  of  the  English  people.  The 
laxity  which  in  the  middle  ages  put  up  with  the  absence 
of  a  majority  of  elected  members,  and  assumed  that  absence, 
like  silence,  gave  consent,  was  no  longer  tolerated.  The 
clerk  kept  a  book  of  attendance  :  no  member  was  allowed 
to  go  home  without  leave,  and  those  who  did  so  were  prose- 
cuted before  the  king's  bench.  Down  to  1558  the  leave 
had  to  be  obtained  from  the  crown;  in  Elizabeth's  reign 
it  begins  to  be  granted  by  the  house  itself.^ 

Slowly,  too,  the  house  developed  a  corporate  conscious- 
ness bred  of  prolonged  and  intimate  association.  The 
medieval  parliament  was  an  affair  of  weeks ;  it  seldom  had 
more  than  one  session,  and  members  rarely  sought  re-elec- 
tion. Every  house  was,  therefore,  a  body  of  strangers, 
speaking  perhaps  incomprehensible  dialects,  distrustful  of 
one  another,  here  to-day  and  gone  to-morrow,  never,  in 
most  cases,  to  meet  again,  and  utterly  unable,  on  account  of 
their  transitory  existence,  to  acquire  confidence  in  one 
another  or  to  develop  leadership  and  parliamentary  skill. 
On  rare  occasions  before  1509  a  parliament  was  called  back 
for  a  second  session ;  but  it  is  during  the  reign  of  Henry  VIII 
that  the  modem  practice  begins,  and  it  begins  with  the 
parliament  that  wrought  the  Reformation.  Summoned  to 
meet  on  November  3,  1529,  its  existence  was  continued  until 
April  4,  1536,  and  during  that  period  it  held  eight  sessions 
extending  over  more  months  than  the  days  of  the  average 

^  Rot.  Pari.,  V.  240,  vi.  191;  cf.  Smith,  De  Republica  Anglorum,  ed. 
Alston,  p.  63. 

2  A   bill   to   control   the   unlicensed  absence  of  members  passed   the 
commons,    but   not    the   lords,    in    January   1554-5,   and    three   similar 
attempts  were   unsuccessfully   made  in   the  following   session    {Political 
History  of  England,  vi.  147-8),  and  yet  another  on  November  9,  1558. 
M 


i62  THE  EVOLUTION  OF  PARLIAMENT 

medieval  parliament.  By  the  end  of  that  period  members 
of  the  house  of  commons  must  have  acquired  a  familiarity 
among  themselves,  a  knowledge  of  parliamentary  procedure, 
and  an  acquaintance  with  national  politics  such  as  no  house 
of  commons  had  ever  possessed  before.  The  experiment 
was  unique  in  the  sixteenth  century,  but  a  later  parliament 
of  Henry  VIII  had  four  sessions,  and  the  first  of  Edward  VI 
had  three.  Mary  saw  fit  to  change  her  parliaments  with 
greater  frequency,  and  five  were  elected  during  the  five  years 
of  her  reign,  only  one  of  which  met  for  a  second  session. 
Ehzabeth  had  not  her  father's  faith  in  parliament ;  but  most 
of  her  parliaments  sat  for  more  than  one  session,  one  session 
lasted  over  three  months,  and  one  parliament  was  undis- 
solved for  nearly  nine  years.  The  leading  members,  more- 
over, both  of  the  government  and  of  the  opposition,  are 
constantly  re-elected;  the  ordinary  personnel  of  the  house 
grew  more  stable ;  and  if  Cecils  and  Bacons  placed  parliamen- 
tary experience  at  the  service  of  the  crown,  Nortons  and 
Wentworths  used  it  on  behalf  of  the  liberties  of  the 
commons. 

Internal  consolidation  was  accompanied  by  expansion, 
and  the  number  of  members  increased  during  the  Tudor 
period  by  more  than  fifty  per  cent.  There  were  fewer  than 
three  hundred  when  Henry  VII  ascended  the  throne ;  there 
Were  more  than  four  hundred  and  fifty  when  Elizabeth  died. 
Henry  VIII  added  eight  members  to  the  representation  of 
Lancashire,  two  each  to  London  and  Middlesex,  Cornwall, 
Norfolk,  Suffolk,  and  Buckinghamshire,  and  one  to  Shrop- 
shire; he  "  shired  "  Wales  and  Monmouth  and  introduced 
twenty-four  Welsh  members  to  parliament;  he  also  incor- 
porated Cheshire,  and  even  extended  the  parliamentary 
system  to  Calais,  leaving  the  county  palatine  of  Durham 
alone  outside  the  national  organization.^  Edward  VI  added 
fourteen  members  to  Cornwall,  four  to  Northamptonshire, 
and    two    each    to    Hampshire,    Yorkshire,    Lincolnshire, 

1  A  bill  "  to  have  two  knights  from  Dmrham  into  the  parliament  " 
was  introduced  in  the  house  of  commons  on  January  i8,  1562-3,  but 
apparently  got  no  farther. 


PARLIAMENT    IN    THE   17tu   pt^x^^t,... 


THE   GROWTH  OF  REPRESENTATION  163 

Cheshire,  Staffordshire,  and  Wales.  Mary  increased  the 
representation  of  Yorkshire  by  ten  members,  that  of  Oxford- 
shire by  three,  of  Kent,  Northumberland,  Norfolk,  Hertford- 
shire, Buckinghamshire,  and  Worcestershire  by  two  each, 
and  of  Northamptonshire  and  Berkshire  by  one  apiece. 
EHzabeth's  additions  amounted  to  fifty-nine  against  forty- 
five  made  by  Henry  VHI,  thirty  by  Edward  VI,  and  twenty- 
seven  by  Mary ;  sixteen  new  members  went  to  Hampshire, 
twelve  to  Cornwall,  six  to  Suffolk,  four  each  to  Kent,  York- 
shire and  Lancashire,  two  each  to  Devon,  Notts,  Gloucester- 
shire, Shropshire,  Staffordshire,  and  Surrey,  and  one  to 
Wales.  It  was  reserved  for  James  I  to  grant  special  repre- 
sentation to  the  universities  of  Oxford  and  Cambridge,  which 
gratefully  elected  his  nominees;  but  by  1603  the  house  of 
commons  was  more  completely  representative  than  it  had 
ever  been  before,  and  in  spite  of  the  acts  restricting  the 
franchise  it  is  probable  that  the  electorate  was  also  growing 
wider.  The  amount  of  free  socage  was  increasing  in  the 
counties,  and  the  bar  of  serfdom  was  steadily  being  removed ; 
at  the  disputed  Norfolk  election  of  1586  three  thousand 
voters  are  stated  to  have  been  present,^  though  in  the 
boroughs  the  widening  of  the  franchise  had  to  await  the 
period  of  the  Long  parliament  and  the  Common  wealth.  ^ 
The  facile  explanation  of  all  this  expansion  on  the  theory 
that  it  was  due  to  the  efforts  of  the  crown  to  pack  par- 
liaments will  not  bear  examination.  The  Cornish  boroughs, 
which  are  usually  chosen  to  substantiate  this  hypothesis, 
were  in  reality  notorious  for  the  independent  and  even 
fractious  spirit  exhibited  by  their  representatives  and 
for  the  paucity  of  privy  councillors  among  their  ranks.^ 

1  D'Ewes,  Journals,  p.  396.  *  See  below,  p.  324. 

3  At  least  four  pronounced  protestants  sat  for  Cornish  constituencies 
in  the  first  parliament  of  Mary's  reign ;  Peter  and  Paul  Wentworth  and 
James  Dalton  were  elected  by  Cornish  constituencies  in  Elizabeth's  reign  ; 
and  under  James  I  and  Charles  I  nearly  all  the  leaders  of  the  parliamentary 
opposition  found  seats  at  one  time  or  other  in  Cornwall,  including  Sir 
John  Eliot,  Hampden,  Coke,  Sir  E.  Sandys,  Holies,  Hakewill,  Sir  R. 
Phelips,  Sir  Henry  Marten,  and  John  Rolle.  Hallam's  theory  {Const. 
Hist.,  i.  45)  that  these  Cornish  constituencies  were  created  to  foster  the 
influence  of  the  court  over  the  commons  is  not  corroborated  by  the 
evidence. 


i64  THE  EVOLUTION  OF  PARLIAMENT 

It  is  more  reasonable  to  suppose  that  the  house  of  commons 
was  reflecting  the  general  growth  of  national  sentiment  and 
of  the  popular  desire  for  a  voice  in  its  own  affairs.  People 
who  repudiated  absolute  authority  in  the  church  would  not 
remain  submissive  to  political  autocracy. 

There  were,  of  course,  defects  enough  in  the  sixteenth- 
century  representative  system  from  the  modern  point  of 
view.  The  lower  classes  had  small  means  of  asserting 
what  little  political  will  they  possessed ;  and  the  greater  the 
influence  which  the  house  of  commons  acquired,  the  greater 
the  eagerness  of  landlords  and  aspiring  lawyers  to  manipulate 
its  elections.  The  social  status  of  burgesses  rose  with  the 
prestige  of  the  house,  aristocrats  canvassed  for  seats  which 
medieval  craftsmen  had  sought  to  avoid,  and  in  the 
eighteenth  century  both  houses  of  parliament  were  appan- 
ages of  the  highest  class  of  society.  But  the  electorate  was 
never  reduced  to  the  same  uniformity  :  the  representative 
system  consisted  of  sections  or  samples;  but  the  sections 
were  vertical,  not  horizontal,  and  the  samples  came  from 
various  social  strata.  The  county  voters  had  to  be  free- 
holders, and  the  restriction  was  arbitrary  enough,  but  it 
included  in  the  franchise  many  who  were  poor  and  excluded 
many  who  were  rich.  The  forty  shillings,  which  had  been  a 
serious  property  disquahfication  in  the  reign  of  Edward  I, 
was  a  trifling  sum  in  that  of  George  III,  and  many  of  the 
forty-shilling  freeholders  must  have  been  very  poor  men. 
Again,  the  franchise  in  many  boroughs  was  democratic,  more 
democratic  before  than  after  1832 ;  and  while  the  great 
reform  bill  mitigated  many  abuses  and  swept  away  some 
anomalies,  it  disfranchised  numbers  of  poor  electors,  and 
created  a  grievance  which  fostered  the  Chartist  movement. 

Feudal  traditions,  however,  long  clung  to  our  franchise 
law,  and  with  them  the  theory  that  it  was  the  land,  and 
not  men  which  should  be  represented  in  parliament.  The 
"  stake  in  the  countr}^"  which  was  used  in  the  eighteenth 
century  to  defend  the  monopoly  of  political  power  by  the 
landed  aristocracy  against  the  claims  of  mere  wealth  derived 
from  banking  or  coipmerce,  was  employed  in  the  nineteenth 


THE  GROWTH  OF  REPRESENTATION  165 

against  the  claims  of  intelligent  poverty ;  and  some  contended 
that  the  number  of  a  man's  votes  should  be  proportionate 
to  his  possessions.  1  Even  now  mere  wealth  does  not  entitle 
a  man  to  a  vote  at  all  unless  that  wealth  is  converted  into 
terms  of  the  tenure  or  occupancy  of  land  and  what  stands 
thereon.  Mere  intelligence  does  not  count  at  all  in  our 
franchise  laws  except  in  so  far  as  it  accounts  for  university 
representation.  Vast  inroads  have,  however,  been  made  on 
feudal  theory  by  ideas  of  universal  suffrage,  and  the  real 
issue  with  regard  to  representation  is  whether  the  indi- 
vidual or  the  family  is  the  unit  to  be  represented.  Modern 
socialism  tends  to  make  the  state  the  sole  form  of  society 
and  to  weaken  every  other  bond  of  association ;  and  parlia- 
ment, instead  of  representing  communities  or  families,  is 
coming  to  represent  nothing  but  individuals. 

1  These  views  were  almost  entirely  abandoned  in  the  debates  on  the 
Franchise  Act  of  191 7. 


CHAPTER   IX 

PARLIAMENT  AND   LIBERTY 

It  has  been  remarked  by  a  skilled  American  observer  of 
English  pohtics  that  "  private  property  in  England  is,  on 
the  whole,  less  secure  from  attack  on  the  part  of  the  Govern- 
ment to-day  than  it  was  at  the  time  of  the  Stuarts."  ^  A 
similar  substratum  of  truth  would  underlie  the  statement 
that  there  was  greater  liberty  before  the  beginning  of  parha- 
ments  than  there  has  been  since  or  is  likely  to  be  again ;  and 
the  days  when  a  wealthy  magnate  like  Peter  des  Roches 
could  evade  a  tax  by  voting  against  it  must  seem  to  many 
a  golden  age  of  liberty  and  property,  from  which  England 
has  been  steadily  falling  away  ever  since  parliaments  were 
invented  to  rob  the  individual  of  his  liberty  by  means  of 
other  men's  votes.  There  is,  however,  no  end  to  the 
paradoxes  for  which  liberty  has  been  the  excuse  or  the 
justification.  The  crimes  perpetrated  in  its  name  have  been 
as  multifarious  as  the  sins  committed  on  behalf  of  religion  or 
the  battles  fought  for  the  sake  of  peace. 

It  is  the  penalty  of  general  and  inspiring  conceptions  that 
they  mean  so  many  different  things  and  inspire  different 
minds  in  so  many  different  ways.  **  When  I  mention 
rehgion,"  said  the  frank  but  reverend  Mr.  Thwackum,  "  1 
mean  the  Christian  reHgion ;  and  not  only  the  Christian 
religion,  but  the  Protestant  religion;  and  not  only  the 
Protestant  religion,  but  the  Church  of  England."  ^  Ortho- 
doxy is  my  'doxy;  heterodoxy  is  other  people's.  True 
liberty  is  my  liberty;  other  people's  is  their  presumption. 
Servants  take  liberties,  but  are  not  often,  in  the  minds  of 

1  A,  Laurence  Lowell,  Essays  on  Government,  pp.  8i,  82. 

2  Fielding,  "Tom  Jones"  in  Works,  ed.  1859,  p.  26. 

166 


PARLIAMENT  AND  LIBERTY  167 

their  masters  or  their  mistresses,  entitled  to  what  they  take. 
"  Like  every  other  struggle  for  liberty,"  writes  Bishop  Stubbs 
of  the  Great  Civil  War,  **  it  ended  in  being  a  struggle  for 
supremacy."  ^  Charles  I  fought  for  liberty  no  less  than  did 
the  parliament  or  the  army,  the  English,  the  Irish,  or  the 
Scots.  Both  north  and  south  fought  for  liberty  in  the 
American  civil  war,  the  north  for  the  liberty  of  the  negroes 
in  the  south,  the  south  for  liberty  to  manage  its  own  affairs. 
Masters  and  men  are  fighting  all  over  the  world  for  liberty, 
masters  for  liberty  to  employ  their  capital  as  they  think  fit, 
men  for  liberty  to  choose  their  own  conditions  of  labour. 
Like  charity,  liberty  covers  a  multitude  of  sins. 

Nothing  has  proved  more  elusive  than  liberty,  and  its 
endless  pursuit  has  filled  the  pages  of  English  history.  Men 
thought,  and  still  think,  it  was  achieved  by  Magna  Carta; 
but  it  had  to  be  fought  for  again  in  the  fourteenth  century, 
in  the  Great  Civil  War,  and  at  the  Revolution  of  1688.  Glorious 
as  it  seemed  to  the  Whigs,  even  that  vindication  of  liberty 
failed  to  satisfy  men  for  long ;  reform  bills  in  the  nineteenth 
century  were  one  after  another  hailed  as  heralds  of  a  newer 
freedom;  and  even  after  the  parliament  act  of  191 1  liberty 
seems  to  some  of  us  farther  off  than  ever.  Nor  are  we 
singular  in  our  discontents.  The  thirteen  American  colonies 
fought  a  war  of  independence  to  achieve  their  liberty; 
they  won,  but  three-quarters  of  a  century  later  they  were 
still  fighting  a  sterner  civil  war  for  liberty;  and  the  latest 
^generation  of  freeborn  Americans  carried  into  office  and 
power  in  19 12  a  president  whose  banner  bore  the  strange 
device  "the  new  freedom."  Man,  said  Rousseau,  is  bom  free, 
and  everywhere  he  is  in  chains ;  man,  it  would  rather  seem, 
is  born  a  slave  and  ever  he  is  seeking  to  burst  his  bonds. 

The  fallacy  lies  in  "  man  " ;  it  also  lies  in  "  liberty."  To  say 
that  man  has  achieved  liberty  is  an  inaccurate  way  of  stating 
that  some  men  have  achieved  some  liberty.  The  problem  of 
liberty,  like  that  of  property,  is  one  of  distribution,  and  cannot 
be  divorced  from  that  of  equality.  There  was  sense  and 
logic  in  the  union  of  the  trinity  of  the  French  Revolution  : 
*  Constitutional  History,  iii.  637. 


i68  THE  EVOLUTION  OF  PARLIAMENT 

there  can  be  no  liberty  without  some  equahty.  But  the  third 
of  the  trio,  fraternity,  supplies — at  least  to  an  American 
student — the  best  illustration  of  the  difficulty  we  have  to 
face  in  tracing  the  growth  of  liberty.  Every  American 
undergraduate  knows  what  a  fraternity  is;  to  an  English 
undergraduate  it  looks  like  an  embryo  college.  It  is  a 
voluntary  association  of  students  for  social — some  think  for 
anti-social — purposes.  Like  every  association,  its  value 
consists  quite  as  much  in  the  many  undesirable  persons  it 
excludes  as  in  the  select  few  it  comprehends.  Fraternities  are, 
indeed,  too  select  for  ultra-democratic  feeling  in  the  United 
States,  and  in  more  than  one  legislature  bills  have  been  intro- 
duced to  abolish  them  as  contraventions  of  democratic 
principle.  Now,  if  a  measure  were  passed  by  congress 
guaranteeing  to  all  fraternities  in  perpetuity  their  privileges 
and  their  property,  it  is  easily  conceivable  that  such  a  measure 
might  come  to  be  called  the  great  charter  of  fraternities. 
But  it  is  not  less  easy  to  understand  that  the  excluded 
majority  might  fail  to  discern  any  connexion  between  such 
a  measure  and  the  democratic  ideal  of  fraternity. 

That  is  the  position  of  Magna  Carta.  It  is  the  great 
charter  of  liberties,  but  not  of  liberty,  and  few  habits  are 
more  fatal  to  historical  understanding  than  that  of  assuming 
that  the  same  word  has  the  same  meaning  at  different 
periods.  We  have  no  constants  in  history.  It  is  far  safer  to 
assume  discrepancy  than  identity,  and  it  is  an  elementary  pre- 
caution to  warn  beginners  in  history  that  medieval  Germany  ^ 
might  include  Austria  but  not  Prussia,  Cambrai  but  not 
Breslau.  These  changes  in  the  territorial  meaning  of  familiar 
terms  are  comparatively  simple  and  obvious ;  the  vicissitudes 
in  the  terminology  of  ideas  are  more  subtle,  and  even  eminent 
archivists  have  provided  striking  illustrations  of  the  dangers 
of  ignoring  them.  Sir  T.  Duffus  Hardy  assumed  that 
religio  in  the  thirteenth  century  meant  religion,  and  was 
astonished  at  John's  modernism  when  he  discovered  a  royal 
licence  condere  novam  religionem,  although  John  was  guilty 
of  nothing  worse  than  granting  a  baron  leave  to  found  a 
religious  house  by  alienating  certain  lands  into  mortmain. 


PARLIAMENT  AND  LIBERTY  169 

Yet  the  difference  between  religio  and  religion  was  not  greater 
than  that  between  lihertas  and  hberty;  and  John  was  as 
medievally-minded  when  he  granted  Magna  Carta  as  when 
he  licensed  a  baron  to  found  an  abbey. 

The  medieval  liherias  and  religio  have  this  in  common  to 
distinguish  them  from  their  modem  synonyms.  Both  were 
concrete  and  material;  both  are  now  abstract  and  ideal. 
The  transformation  from  the  one  to  the  other  has  been 
the  common  characteristic  of  linguistic  development.  The 
expansion  of  a  nation's  mind  is  seen,  like  that  of  a  child's, 
in  the  expansion  of  the  meaning  attached  to  the  terms  it 
uses.  One  child  has  been  known  to  think  that  Eleanor  of 
Aquitaine  was  corpulent  because  she  was  described  in  a 
textbook  as  "  one  of  Henry  II's  stoutest  adherents  " ;  and 
another  imbibed  the  same  idea  of  God  from  being  told  of 
His  omnipresence.  Liberty  and  religion  are  very  local  to 
primitive  minds :  local  gods  become  tribal  deities,  and  then 
the  national  gods  of  chosen  peoples.  But  even  Israel  revolted 
against  a  God  which  had  to  be  worshipped  in  Judah,  as 
England  murmured  against  a  pope  in  Avignon,  and  nations 
had  to  advance  ^far  on  the  path  of  civilization  before 
they  relinquished  their  conviction  that  their  God  spoke 
in  their  vernacular  and  gave  them  special  protection  in 
battle. 

Their  liberties  were  as  their  deities,  peculiar  to  themselves, 
circumscribed  in  their  operation,  bound  to  the  soil,  tangible, 
visible,  and  concrete.  The  genius  loci  was  at  the  bottom  of 
both;  and  famous  shrines  had  their  counterpart  in  great 
liberties.  The  general  idea  was  lost  in  the  local  manifesta- 
tion ;  and  our  Lady  of  Walsingham  belongs  to  the  same  class 
of  phenomena  as  the  "  liberties  of  the  Fleet."  Liberties 
were  always  attached  to  particular  persons  or  places ;  there 
was  nothing  general  or  national  about  them.  They  were 
definite  concrete  privileges,  which  some  people  enjoyed, 
but  most  did  not.  The  first  clause  of  Magna  Carta — quod 
ecclesia  anglicana  libera  sit — seems  to  be  general  enough; 
but  the  explanation  that  follows  shows  that  all  it  meant 
was  that  cathedral  chapters  should  be  free  to  elect  their 


I70  THE  EVOLUTION   OF  PARLIAMENT 

bishops,  and  presumably  that  the  king  should  not  be  free 
to  refuse  them  their  temporalities.^  Possibly  the  explan- 
ation was  a  royalist  gloss,  and  the  demand  for  ecclesiastical 
freedom  meant,  in  the  minds  of  those  who  made  it,  that  the 
restrictions  imposed  on  the  liberties  of  the  church  by  the 
Constitutions  of  Clarendon  should  be  ignored  :  as  a"  matter 
of  practice  they  were  ignored  in  the  later  middle  ages,  and 
this  was  assuredly  a  more  general  liberty  than  any  con- 
ceded in  the  charter.  For  the  rest,  the  liberties  of  the 
ecclesia  were  simply  the  sum  of  the  particular  liberties  of 
each  ecclesiastic.  They  were  rights  of  patronage  and  juris- 
diction; and  contention  over  these  "liberties"  of  the 
church  is  quite  as  rife  in  the  middle  ages  among  church- 
men themselves  as  between  church  and  state.  In  both 
spheres  alike  liberty  was  an  adjunct,  almost  a  form,  of 
property;  and  it  was  prized  for  its  material  and  financial 
attributes. 

It  was  almost  always  a  local  monopoly.  The  liberty  of  a 
town  consisted  largely  in  its  right  to  rate  its  inhabitants  and 
to  levy  tolls  on  all  who  frequented  its  markets.  The  liberty 
of  a  baron  consisted  in  his  authority  over  others,  in  the  court 
he  owned,  and  in  the  perquisites  of  his  jurisdiction.  To 
deprive  him  of  this  jurisdiction  over  his  villeins  was  an 
infringement  of  his  liberty  expressly  prohibited  by  the 
thirty-fourth  clause  of  the  charter.  Another  infringement 
of  liberty  forbidden  by  the  charter  was  the  reduction  of  the 
number  of  villeins  on  the  estates  of  a  ward  of  the  crown. 
That  was  a  '*  waste  of  men  "  which  impaired  the  value  of 
the  lands,  and  the  emancipation  of  his  villeins  infringed  the 
liberty  of  the  lord.  Just  as  one  man's  food  is  another  man's 
poison,  one  man's  liberty  was  another's  servitude.  The 
liberties  which  the  barons  hoped  to  secure  at  Runnymede 
were  largely  composed  of  the  services  of  their  villeins.  A 
liberty  was  in  no  sense  a  common  right  or  a  popular  concep- 
tion.    It  has  been  defined  as  a  portion  of  sovereign  authority 

^  There  is  nothing  in  Magna  Carta  to  compel  the  king  to'  invest  an 
elected  bishop  with  his  temporalities,  and  the  impossibility  of  binding 
the  king  in  this  vray  rendered  the  concession  almost  nugatory  from  the 
first. 


PARLIAMENT  AND  LIBERTY  171 

in  the  hands  of  a  subject;  and  the  popularity  of  hberty 
entirely  depends  upon  the  extent  of  the  portions  and  of  their 
distribution.  Medieval  liberties  were  large,  but  their 
recipients  were  few.  They  were  the  exceptions  to  the  rule ; 
it  was  because  they  were  rare  privileges  and  not  common 
rights  that  the  framers  of  Magna  Carta  set  so  much  store 
upon  liberties.  When  the  house  of  commons  began  to  deal 
with  the  subject  in  Edward  Ill's  reign,  it  had  a  different 
tale  to  tell;  it  begged  the  king,  in  1348,  to  grant  no  more 
liberties  in  the  future.  Every  franchise  or  liberty  was  so 
much  land  and  so  many  people  cut  off  from  the  common 
law,  excluded  from  the  beneficent  operation  of  king's  writs 
and  royal  justice,  and  subjected  to  the  arbitrary  will  of  the 
owner  of  the  liberty. 

To  redistribute  and  equalize  liberty  has  been  one  of  the 
principal  functions  of  parliament ;  and  the  petition  of  1348 
is  the  earliest  indication  of  its  grasp  of  the  problem.  But  one 
of  the  greatest  obstacles  to  reform  is  commonly  the  reformers' 
frame  of  mind;  and  the  keenest  opponents  of  other  men's 
privileges  are  often  the  stoutest  defenders  of  their  own. 
Parliamentary  concentration  on  the  task  of  reducing  liberties 
was  impeded  by  the  addiction  of  members  to  their  own ;  and 
so  long  as  constituencies  were  evading  parliamentary  repre- 
sentation in  order  to  lessen  their  share  in  taxation  and  save 
the  expense  of  members'  wages,  the  house  of  commons  could 
not  be  a  very  efficient  instrument  of  reform.  The  local  interest 
ever  outweighed  the  common  advantage  during  the  middle 
ages ;  and  parliaments,  while  they  gave  vent  to  complaints, 
failed  to  enforce  a  remedy.  The  Good  parliament  of  1376 
was  followed  by  a  worthless  successor,  and  the  commons  by 
themselves  were  hardly  able  to  compel  the  adoption  of  a 
single  reform  throughout  the  middle  ages.  It  was  not  they 
who  checked  Edward  I,  removed  Edward  II  or  Richard  II, 
or  disposed  of  Henry  VI  or  Richard  III.  Changes  of  govern- 
ment were  sometimes  legaHzed  in  parliament,  but  they  were 
made  outside,  by  unparliamentary  methods  and  forces ;  and 
these  same  forces  which  made  and  unmade  kings  were 
themselves  the  repositories  of  the  **  liberties  "  of  which  the 


172  THE  EVOLUTION  OF  PARLIAMENT 


I 


commons  complained.  Indeed,  the  more  they  made  free  withi 
the  royal  prerogative  and  took  liberties  with  the  crown, 
the  greater  grew  their  own.  "  Get  you  lordship,"  wrote  one 
of  the  Paston  correspondents  in  1450,  "  quia  ihi  pendet  tola 
lex  et  prophetcB."  ^  Lordship  and  liberty  were  much  the 
same  thing,  and  the  over-mighty  subject  grasped  an  ever- 
increasing  share  of  sovereign  power.  As  late  as  Elizabeth's 
reign  it  was  said  that  the  men  of  Northumberland  would 
have  no  other  prince  than  a  Percy,  and  in  Yorkshire  the 
sheriff  had  little  power  against  the  bailiffs  and  stewards 
of  the  northern  earls.  The  so-called  constitutional  experi- 
ment of  the  Lancastrians  consisted  in  little  more  than  giving 
rein  to  the  local  liberties  of  the  magnates,  who  in  the  Wars 
of  the  Roses  took  the  bit  between  their  teeth. 

The  extent  of  the  liberties  claimed  by  these  magnates 
is  difficult  to  realize,  but  without  some  appreciation  of  it 
we  cannot  explain  the  Tudor  autocracy  or  understand  how 
that  despotism  coincided  with  a  vast  movement  of  national 
liberation.  It  was  not  merely  that  the  over-mighty  subject 
excluded  royal  writs  from  his  franchise  and  defied  the  crown 
from  his  feudal  castle.  We  now  regard  the  armed  forces 
of  the  nation  as  the  armed  forces  of  the  crown,  but  then  the 
crown  controlled  but  a  fraction  of  the  military  strength  of 
England.  Each  magnate  had  his  council  of  state,  his  council 
learned  in  the  law,  and  his  bands  of  armed  retainers,  with 
which  he  could  do  more  or  less  as  he  liked.  In  a  state  trial 
of  1554  it  was  urged  in  defence  of  the  Duke  of  Suffolk  that 
there  was  nothing  treasonable  in  a  peer  levying  his  forces 
and  making  proclamation  that  foreigners  should  quit  the 
realm. ^  Technically  the  contention  was  sound,  but  the 
picture  of  peers  raising  forces  and  making  proclamations 
on  their  own  account  in  the  middle  of  the  Tudor  period 
indicates  the  largeness  of  their  liberties.  In  Elizabeth's 
reign  even  members  of  her  council  considered  it  not  incom- 
patible with  their  loyalty  to  carry  on  diplomatic  correspond- 
ence of  their  own  with  foreign  powers  and  to  invoke  foreign 
assistance  in  their  struggles  with  their  colleagues.     The  law 

1  Paston  Letters,  i.  156,  2  chron.  Queen  Jane,  Camden  Soc,  p.  60. 


PARLIAMENT  AND  LIBERTY  173 

of  treason,  too,  protected  them  as  well  as  the  crown;  if 
an  offence  against  the  latter  might  be  high  treason,  an  offence 
against  the  former  might  be  petty  treason;  and  an  act  of 
Henry  VII  speaks  of  a  man's  master  as  being  his  sovereign.^ 
The  idea  of  a  single  all-embracing  national  sovereign  was 
still  in  the  making,  and  lords  still  regarded  themselves  as 
princes  ^  enjoying  sovereign  liberties. 

The  destruction  of  these  liberties  was  the  great  service 
rendered  by  the  Tudors  to  the  cause  of  English  liberty. 
Parliament  in  the  middle  ages  had  failed  to  nationalize 
liberty;  with  the  help  of  the  crown  that  nationalization 
was  achieved  in  the  sixteenth  century.  Liberty  was  made 
more  common  by  redistribution;  the  great  liberties  of  the 
few  were  diminished,  the  meagre  liberties  of  the  mass  in- 
creased; and  dukes  and  serfs  make  a  simultaneous  disap- 
pearance from  the  England  of  William  Shakespeare.^  The 
liberation  was  achieved,  like  most  acts  of  emancipation, 
by  despotic  means.  Even  the  act  emancipating  British 
slaves  was  passed  in  1834  ^Y  ^  parliament  in  which  the 
slaveholders  were  not  represented  and  over  which  they  had 
no  control ;  emancipation  was  imposed  by  the  north  on  the 
south  of  the  United  States  at  the  point  of  the  bayonet; 
and  it  was  an  autocrat  of  all  the  Russias  who  emancipated 
the  Russian  serf.  So  it  was  the  Tudor  despots  who  emanci- 
pated England  from  its  medieval  "  liberties."  Henry  VII 
restrained  the  liberty  of  maintenance  and  deprived  the  nobles 
of  their  hosts  of  armed  retainers ;  *  and  by  means  of  the 
Star  chamber  he  checked  their  liberty  of  packing,  bribing, 
and  intimidating  juries.     Henry  VIII,  by  an  act  of  parlia- 

^  See  below,  p.  228. 

2  The  modem  restriction  of  princeps  or  prince  to  members  of  royal 
families  is  an  illustration  of  the  centralization  of  sovereignty.  Cf.  Shake- 
speare's King  John,  "  Now  these  her  princes  are  come  home  again." 

3  With  the  execution  of  Northumberland  in  1553  and  Suffolk  in  1554, 
Norfolk  became  the  only  duke  in  England,  and  he  was  attainted  in  1572 ; 
for  more  than  half  a  century  England  was  destitute  of  dukes.  Similarly 
the  marquisates  were  reduced  to  one — Winchester.  With  regard  to  serfs. 
Sir  Thomas  Smith  declares  that  they  were  practically  non-existent  in 
his  time,  though  some  instances  of  manumission  are  found  earlier  in  tlie 
century. 

*  See  my  Reign  of  Henry  VII,  ii.  65-77. 


174  THE  EVOLUTION  OF  PARLIAMENT 

ment,^  took  many  medieval  *'  liberties  "  into  his  hands;  he 
improved  upon  the  petition  presented  by  the  commons  in 
1348,  and  not  only  refrained  from  granting  liberties,  to  the 
hindrance  of  the  common  law  and  oppression  of  the  conmion^ 
people,  but  revoked  the  grants  that  had  been  made.  The 
Tudor  prerogative  courts,  the  councils  of  the  North,  of 
Wales,  and  so  forth,  gathered  into  their  hands  the  liberties 
of  the  marcher  lords,  and  reduced  the  realm  to  a  common 
order. 

Nor  was  it  only  lords  whose  liberties  were  restricted  in  the 
interests  of  national  freedom.  The  franchises  of  corpora- 
tions might  be  as  fatal  to  general  liberty  as  the  privileges 
of  peers.  Bacon  described  gilds  as  "  fraternities  in  evil," 
Sir  John  Mason  thought  corporations  more  hurtful  to  the 
realm  than  anything  else;  and  in  1682  the  citizens  of 
London  were  declared  liable  to  fine  and  imprisonment  for 
"presuming  to  act  as  a  corporation."  ^  They,  too,  were 
possessed  of  portions  of  sovereign  authority  which  they  used 
to  the  common  detriment.  London  tried  to  impoverish  other 
English  cities  by  forbidding  its  merchants  to  frequent  their 
markets,  and  England  presented  a  welter  of  conflicting  and 
restricting  municipal  jurisdictions.  The  '*  freedom  "  wMch 
cities  now  confer  on  eminent  politicians  is  a  survival  from 
times  and  conditions  in  which  every  Englishman  w^as  a 
foreigner  outside  his  native  town,  with  no  liberties  in  any 
city  but  his  own.  Nor  did  he  possess  much  liberty  even 
there.  Municipal  independence  was  no  guarantee  of  indi- 
vidual freedom ;  and  in  many  a  medieval  city  renowned  for 
its  fight  against  despots  the  individual's  liberty  was  confined 
by  a  minute  and  meticulous  regulation  unknown  to  oriental 
tyranny.     His  every  act  was  regulated  for  him  from  the 

1  27  Henry  VIII,  c.  24;  cf.  32  Henry  VIII,  c.  20.  There  are  still 
survivals.  The  city  of  London  is  exempt  from  justices  of  assize.  The 
Marquis  of  Exeter,  as  lord  paramount,  appoints  all  magistrates  in  the  soke 
of  Peterborough  {Vict.  Hist,  of  Northamptonshire,  ii.  423-4,  427).  Halifax 
had  its  own  "gibbet-law,"  and  there  are  still  quaint  "liberties"  in  Kent 
(Mcllwain,  p.  360) . 

*  Leadam,  Star  Chamber,  Selden  Soc,  vol.  i.  p.  cli;  Tytler,  Edward  VI, 
1.  362 ;  Foreign  Calendar,  1547-53,  p.  90 ;  Maitland,  Collected  Papers, 
iv   311. 


PARLIAMENT  AND  LIBERTY  175 

cradle  to  the  grave.  He  could  not  leave  the  parish  in 
which  he  was  bom  or  the  trade  to  which  he  was  bred, 
or  carry  on  business  except  in  accordance  with  cast-iron 
rules.  The  necessities  of  self-defence  in  a  limited  space 
compelled  the  closest  formation,  and  individual  liberty  was 
a  luxury  which  municipal  independence  could  not  afford. 
National  strength  and  protection  relieved  the  need  for 
congestion.  City  walls  and  castle-keeps  could  disappear  with 
civil  war  and  feudal  anarchy,  and  civic  liberty  could  spread 
to  the  bounds  of  the  sea  behind  the  shield  of  a  nation's 
navy.  It  was  not  mere  chance  that  the  dynasty  which 
created  England's  fleet  destroyed  its  civic  independence 
and  subjected  municipal  legislation  to  national  control.^ 
By  centralizing  power  the  Tudors  expanded  English  liberties 
and  converted  local  privileges  into  a  common  national  right. 
They  did  it  by  means  of  parliament,  and  could  not  have 
done  it  without.  For  one  thing,  only  the  common  feeling 
produced  by  the  co-operation  of  local  representatives  at 
Westminster  could  have  prepared  the  way  for  the  requisite 
surrender  of  local  prejudice  and  the  merging  of  local  in 
national  liberty.  For  another,  nothing  less  than  an  act 
of  the  crown  in  parliament  could  have  constrained  these 
local  and  personal  liberties.  It  was  sufficiently  revolutionary 
that  even  an  act  of  parliament  should  override  a  medieval 
liberty;  for  the  notion  of  fundamental  law  was  deeply 
ingrained  in  the  medieval  mind,  and  the  possessors  of 
liberties  based  their  possession  on  a  divine  or  natural  law 
that  was  beyond  and  above  the  power  of  kings  or  parliaments. 
Magna  Carta  was  long  regarded  as  fundamental  law,  and 
repeated  protests  were  made  that  all  things  done  in  contra- 
vention thereof,  judicial  or  legislative,  within  or  without 
parliament,  should  be  regarded  as  null  and  void.  The  growth 
of  positive  law  at  the  expense  of  divine  and  natural  law,  and 
of  the  idea  that  human  will  and  mundane  counsels  could 
amend  the  foundations  of  society,  is  the  beginning  of  the 
sovereignty  of  parliament.     But  without  that  overriding 

*  19  Henry  VII,  c.  7;  cf.  Leadam,  Star  Chamber,  vol.  i.  p.  cli;  and  my 
Reign  of  Henry  VII,  vol.  i.  p.  xliv,  vol.  ii.  198-9. 


176  THE   EVOLUTION  OF  PARLIAMENT 

sovereignty  to  limit  and  abolish  them,  English  medieval 
liberties  would  have  petrified  society  on  a  mould  of  local 
and  class  particularism,  and  have  produced  that  kind  of 
ossification  which  stereotyped  oriental  communities  and  even 
rediiced  France  to  the  necessity  of  bursting  its  social  shell 
for  the  sake  of  expansion.^ 

As  it  was,  the  crown  in  parliament  secured  a  free  hand 
through  the  tacit  or  actual  surrender  of  the  claim  to  inde- 
feasible liberty  on  the  part  of  individuals  and  associations. 
The  attachment  of  the  medieval  mind  to  this  autonomy  was 
pronounced,  and  it  has  been  said  that  the  indestructibility 
of  the  individual  will  was  the  strongest  characteristic  of  the 
middle  ages.^  Even  in  the  administration  of  justice  the 
accused  could  refuse  to  submit  to  the  verdict  of  his  country  ; 
he  could  "  stand  mute,"  i.  e.  decline  to  plead.  It  is  true  that 
the  one  form  of  torture  countenanced  by  English  law,  the 
peine  forte  et  dure,  could  be  applied  to  overcome  this  resist- 
ance ;  but  if  he  died  under  its  pressure,  the  court  had  to  go 
without  its  verdict.  He  died  an  innocent  man  and  his 
property  could  not  be  touched.  When  Henry  VHI  was 
attacking  the  monasteries  infinite  pains  were  taken  to  secure 
"  surrenders  "  in  preference,  or  at  least  as  a  preliminary,  to 
parliamentary  confiscation.  In  every  sphere  the  particularist 
manifestation  was  strong  compared  with  the  national,  and 
parliaments  only  succeeded  in  overriding  the  individual 
because  every  Englishman  was  "  intended  "  to  be  present 
in  parliament,  and  an  act  of  parliament  was  understood  to 
be  by  representation  the  act  of  every  individual.  Its 
sovereignty  was  the  sum  total  of  the  will  of  every  member 
of  the  community.  It  monopolized  power  and  prepared 
the  way  for  the  Austinian  dogma  that  law  is  the  command 
of  the  state.  Liberty  therefore  came  to  depend,  not  upon 
an  immutable  divine  or  natural  law,  but  upon  the  will  of 
the  community  as  expressed  in  acts  of  parliament  which 

1  Cf.  the  French  declaration  of  i8  August,  1792  :  "  A  state  that  is  truly 
free  ought  not  to  suffer  within  its  bosom  any  corporation,  not  even  such 
as,  being  dedicated  to  public  instruction,  have  merited  well  of  the  country  " 
(Maitland,  Coll.  Papers,  iii.  311). 

2  Gierke,  Political  Theories  of  the  Middle  Age,  ed.  Maitland,  pp.  81-2. 


PARLIAMENT  AND  LIBERTY 


177 


could  extend,  restrict,  or  redistribute  the  various  liberties 
possessed  by  different  classes. 

The  effect  of  this  development  of  parliamentary  power  was 
to  make  it  possible  to  moderate  the  inequalities  of  medieval 
liberty ;  and,  while  the  overmighty  subject  suffered  crushing 
blows  in  Tudor  times,  the  age  was  for  the  mass  of  English 
people  one  of  liberation.  Liberty  became  a  national  matter 
rather  than  the  privilege  of  a  class  or  a  locality.  Curious 
relics  of  local  liberties  still  remain;  but  for  the  most  part 
these  anomalies  were,  during  the  sixteenth  century,  merged 
in  common  and  equal  rights  guaranteed  by  acts  of  parlia- 
ment and  enforced  by  royal  or  national  law  courts.  It  was 
the  destruction  of  these  barriers  and  the  fusion  of  classes 
that  produced  the  intense  national  and  patriotic  feeling  of 
Elizabeth's  reign.  The  trinity  of  estates  fades  into  the  unity 
of  the  state. 

The  state,  however,  and  its  organized  expression  in  parlia- 
ment were  of  composite  character ;  and  each  of  its  elements 
struggled  for  supremacy.  England  had  been  unified  under 
the  aegis  of  the  high  court  of  parliament ;  there  were  to  be 
no  local  sovereignties,  no  provincial  parliaments,  no  autono- 
mous church,  and  that  "  parliament  cannot  err  "  became  a 
doctrine  recognized  even  by  royalist  judges.^  But  within 
the  precincts  of  this  court,  crown,  lords,  judges,  and  commons 
contended  for  the  mastery,  and  asserted  their  "  liberties  " 
in  a  medieval  spirit.  James  I  and  Charles  I  were  just 
as  intent  upon  **  liberty "  as  the  house  of  commons  or 
chief  justice  Coke ;  and  to  each  element  in  the  constitution 
liberty  meant  its  liberty,  that  is  to  say,  its  independence  and 
irresponsibility.  James  had  engraven  in  his  heart  a  "  law 
of  free  monarchy  "  2  ^nd  he  tried  also  to  impress  it  on  his 
people.  By  this  freedom  he  meant  independence  alike  of 
pope  and  parliament,  and  dependence  only  on  God.  Nor 
was  James  peculiar  in  this  view ;  his  most  illustrious  victim 
agreed.     The    prince,   quotes   Raleigh  with  approval,  non 

^  Letters  and  Papers  of  Henry  VIII,  vol.  xxi.  pt.  ii.  p.  345;  Gardiner, 
Select  Documents,  ed.  1889,  p.  54. 

2  See  Political  Works  of  James  I,  Harvard  Univ.  Press,  pp.  52  sqq. 
N 


178  THE  EVOLUTION  OF  PARLIAMENT 

suhjicitiiy  nisi  sua  voluntate  libera,  mero  motii,  et  scientia  certa  ; 
and  any  constraint  absolved  him  from  his  bond.^  Charles 
also  contended  that  in  defending  the  liberties  of  kings  he 
was  making  common  cause  with  his  people.  Government 
was  nothing  pertaining  to  them;  it  was  his  "liberty": 
theirs  consisted  in  living  under  such  laws  as  protected 
their  lives  and  property,  and  not  in  controlling  the  govern- 
ment. He  claimed  that  the  free  choice  of  advisers  was  a 
liberty  possessed  by  every  man,  and  that  parliament,  in 
attempting  to  make  his  ministers  responsible  to  it,  was 
robbing  him  of  a  liberty  enjoyed  by  all  his  subjects.^  Like 
true  medievalists,  the  Stuarts  based  their  claim  upon  a  divine, 
immutable  right;  but  they  added  a  Reformation  doctrine 
that  this  right  was  immune  from  papal  arbitrament,  and  a 
further  contention  that  it  was  based  on  primogeniture. 
That  was  the  one  kind  of  predestination  which  commended 
itself  to  James  I ;  and  his  divine  hereditary  right  of  kings 
was  a  cross  between  scholastic  politics  and  Calvinistic 
theology.  With  it  parliaments  had  nothing  to  do :  no  posi- 
tive law  made  by  human  hands  could  amend  an  ordinance 
of  God. 

Parliament's  conception  of  liberty  was  hardly  less  self- 
centred.  Liberty  was  its  liberties.  Whence  they  had  been 
derived  was  of  little  concern  to  members,  and  their  historical 
scholarship  was  worse  than  that  of  the  Stuarts.  But 
convictions  that  have  no  historical  basis  are  often  political 
assets.  Parliament  was  convinced  that  its  liberties  were 
immemorial,  that  they  were  irrevocable  rights  independent 
of  the  grace  or  favour  of  the  crown.  Parliament  was,  it 
told  James  I  in  1604,  above  the  law ;  ^  it  regarded  itself  as 
responsible  neither  to  the  crown  nor  to  the  people,  and  its 
privileges  as  being  the  expression  of  its  own  autocracy. 
Coke,  on  the  other  hand,  was  concerned  with  the  liberties 
of  the  judges ;  according  to  him  they  were  independent  and 
irresponsible.     They  were  the  supreme  interpreters  of  the 

1  Prothero,  Select  Documents,  p.  409. 

2  Gardiner,  Select  Documents,  pp.  157,  285-6. 

3  Prothero,  Select  Documents,  p.  290. 


PARLIAMENT  AND  LIBERTY  179 

common  law,  and  the  common  law  was  to  him  what  divine 
right  was  to  the  Stuarts  and  parliamentary  privilege  to  the 
house  of  commons,  something  above  the  reach  of  amend- 
ment either  by  crown  or  by  parliaments. ^  He  looked  upon  it 
as  perfect  and  fundamental,  and  upon  the  judges  as  the 
arbiters  of  the  constitution,  in  much  the  same  way  as 
federalists  regard  their  supreme  courts.  His  view  was  a 
reversion  to  the  thirteenth  century,  when  Magna  Carta  was 
the  constitution  and  judicia  were  the  only  form  of  legislative 
amendment.  **  Magna  Carta,"  he  said,  "  is  such  a  fellow 
that  he  will,  have  no  sovereign  " ;  ^  and  he,  as  chief  justice 
of  common  pleas,  was  its  high  priest.  To  him  the  autocracy 
of  the  bench  was  the  highest  kind  of  liberty.  Nor  did 
Cromwell  differ  radically  from  these  conceptions,  though  he 
gave  them  a  different  turn.  The  army's  title  to  rule  was 
a  divine  right,  proved  by  victories  vouchsafed  by  the 
God  of  battles;  and  the  supreme  magistrate  must  have 
liberty  to  establish  that  form  of  religion  in  which  he  believes ; 
otherwise  he  is  denied  his  freedom  of  conscience.^ 

The  constitutional  struggle  of  the  seventeenth  century 
was  an  effort  to  deprive  kings  of  their  liberties,  and  it  was 
consummated  in  the  Revolution  of  1688,  which  robbed  the 
crown  of  liberty  of  conscience  and  imposed  upon  it  a  whole 
decalogue  of  prohibitions.  Liberty  was  transferred  from 
king  to  parliament,  and  parliament  could  authorize  the  king 
to  commit  every  one  of  the  acts  which  it  declared  illegal 
without  its  consent.  While  bounds  were  set  on  every  side 
to  the  freedom  of  the  crown,  none  were  imposed  on  that  of 
parliament;  and  for  three-quarters  of  a  century  after  the 
Revolution  the  house  of  commons  asserted  an  independence 
and  irresponsibility  as  great  as  that  which  the  Stuarts  had 
claimed  for  themselves.  It  interpreted  its  liberties  as  in- 
cluding powers  to  deny  the  right  of  petition  to  the  crown,  to 

*  The  lawyers  in  parliament  held  similar  views,  and  in  1604  the  Speaker 
described  the  common  law  as  a  compound  of  the  law  of  God,  the  law 
of  reason,  and  the  law  of  nature,  and  therefore  as  being  immutable 
{Commons''  Journals,  i.  254a;  Mcllwain,  p.  63  n.). 

2  Ibid.,  p.  83. 

^  Carlyle,  Cromwell,  ed.  Lomas,  ii.  382. 


i8o  THE  EVOLUTION  OF  PARLIAMENT 

refuse  as  a  matter  of  privilege  the  right  of  electors  to  vote, 
to  exclude  members  whom  they  had  elected,  and  to  admit 
candidates  they  had  rejected.  To  report  speeches  delivered 
and  to  publish  division  lists  taken  in  parliament  was  de- 
nounced as  countenancing  the  mischievous  idea  that  members 
were  responsible  to  an  authority  outside  the  walls  of  the  two 
houses ;  and  their  parliamentary  liberties  were  even  invoked 
to  give  an  extra-legal  protection  to  members'  fishponds  and 
rabbits.^  Parliamentary  privilege  was,  in  fact,  the  last 
of  medieval  liberties  to  be  reduced  by  common  law.  Nor  is 
the  medieval  conception  of  liberty  yet  extinct;  it  survives 
in  the  independence  sometimes  rashly  claimed  for  the  house 
of  lords.  For  independence  is  like  liberty,  a  vague  but 
stimulating  word,  and  its  value  depends  upon  the  sort  of 
immunity  it  implies.  Independence  of  the  house  of  com- 
mons is  at  least  a  plausible  claim  to  make  for  the  house  of 
lords.  But  one  of  its  boldest  members  has  contended  that 
even  though  a  measure  were  approved  at  a  dozen  general 
elections,  the  house  of  lords  would  be  entitled  to  reject  it. 
This  is  frankly  independence  of  public  opinion;  it  is  the 
liberty  of  Magna  Carta  and  the  Stuarts,  a  liberty  to  the 
hindrance  of  the  common  law  and  oppression  of  the  common 
people. 

What  then  did  the  Whigs  mean  by  that  "  civil  and  religious 
liberty  "  which  they  were  never  tired  of  toasting  and  thought 
they  had  won  by  the  glorious  revolution?  Clearly  it  did 
not  imply  to  them  a  universal  franchise,  a  share  of  every  man 
in  the  control  of  government.  Not  one  Englishman  in 
fifty  possessed  a  vote  in  the  eighteenth  century;  even  the 
agitators  of  Cromwell's  time  scouted  the  notion  that  serving- 
men  should  vote,  and  for  a  hundred  years  and  more  after 
the  revolution  the  Whigs  as  a  whole  opposed  any  extension 
of  the  franchise.  Electors  must  be  "  free  and  independent," 
independent,  that  is  to  say,  of  masters  and  employers.  The 
Whig  conception  of  liberty  was  not  very  different  from  that 
of  Charles  I;  government  was  not  a  matter  pertaining  to 
the  people;   for  the  vast  majority  liberty  should  consist  in 

*  Mcllwain,  p.  376 ;  this  was  only  an  extension  of  the  privilege  which 
protected  members'  servants  from  arrest. 


PARLIAMENT  AND  LIBERTY  i8i 

freedom  from  molestation,  the  kind  of  liberty  which  every 
benevolent  despot  of  the  eighteenth  century  tried  to  bestow 
on  his  subjects.  Liberty  of  conscience  they  conceded,  and 
some  liberty  of  speech  and  worship;  but  the  Test  acts 
still  remained  upon  the  statute-book,  freedom  of  the  press 
was  still  restricted,  and  that  kind  of  liberty  which  implies 
a  right  to  vote  was  ignored.  It  was  not  until  1917  admitted 
as  an  indispensable  element  of  freedom;  for  the  whole 
population  was  supposed  to  be  free,  while  only  one  sex 
wielded  the  vote.  Parliament  in  1688  thought  that  liberty 
was  achieved  when  the  houses  controlled  the  crown.  Their 
liberties  were  no  doubt  secured;  but  the  Whigs  failed  to 
realize  that  unless  the  nation  secured  control  of  parliament, 
parliamentary  liberties  might  become  as  dangerous  to  the 
community  as  the  baronial  liberties  of  121 5  or  the  royal 
liberties  of  the  Stuarts. 

This  failure  was  largely  responsible  for  the  American  war 
of  independence ;  but  the  authors  of  that  revolution  no  more 
succeeded  in  solving  the  problem  of  liberty  than  did  the 
Whigs  in  1688.  Indeed,  they  provided  perhaps  the  most 
striking  example  in  history  of  the  facility  with  which  men 
can  be  blind  to  any  liberties  but  their  own;  and  there  are 
few  more  ironic  spectacles  than  that  of  a  community  con- 
sisting largely  of  slave-owners  proclaiming  in  fervid  tones 
their  devotion  to  the  rights  of  man.  When  they  spoke  of 
man  they  meant  white,  and  not  yellow,  red,  or  black  men ; 
and  their  gospel  of  universal  liberty  was  only  intended  for 
application  to  themselves.  But,  even  apart  from  the  races 
more  highly  coloured  than  the  colonists  themselves,  the 
assertions  of  liberty  in  which  American  constitutions 
abound  have  left  a  good  deal  to  be  desired  by  the  descendants 
of  those  who  framed  them;  and  latter-day  citizens  of  the 
United  States  have  discovered  that  the  mere  assertion  of 
the  principle  of  liberty  is  a  poor  substitute  for  its  definition. 
No  one,  runs  the  most  famous  of  the  commonplaces  of  Ameri- 
can constitutions,  shall  be  deprived  of  his  liberty  without 
due  process  of  law ;  and  the  interpretation  thereof  has  been 
left  to  the  supreme  courts  of  the  various  states.  A  few 
samples   will  suffice    for   illustration.    A  state  legislature 


182  THE  EVOLUTION  OF  PARLIAMENT 

passed  a  measure  prohibiting  employers  from  paying  wages 
in  kind  instead  of  coin ;  its  supreme  court  declared  the  law 
invalid  because  it  infringed  the  employer's  liberty  without 
due  process  of  law.  Similar  measures  to  compel  the  provision 
of  washhouses  for  miners  and  to  prevent  the  use  of  the  stars 
and  stripes  for  commercial  advertisement  have  been  pro- 
nounced invalid  in  the  sacred  cause  of  liberty.  That  a  man 
may  do  what  he  likes  with  his  own  was  for  long  one  of  the 
cardinal  principles  of  American  sociology,  even  when  "  his 
own  "  included  his  human  chattels.  Liberty  was  linked  with 
property  and  became  the  liberty  of  property,  the  servitude 
of  men. 

From  these  judicial  extravagances  England  has  been  saved 
by  the  historical  fact  that  parliament  is  the  highest  court  in 
the  land.  Every  act  of  parliament  is  due  process  of  law, 
and  no  inferior  court  can  declare  it  invalid,  while  in  the 
United  States  no  legislature  is  a  court,  no  legislative  act  is  due 
process  of  law,  and  a  supreme  court  can  often  frustrate  the 
legislature  of  the  state.  But  the  problem  of  liberty  remains 
unsolved.  At  the  revolution  of  1688  men  imagined  that  all 
"^  was  gained  with  the  achievement  of  civil  and  religious  liberty ; 
in  the  nineteenth  century  they  pinned  their  faith  to  political 
liberty  and  looked  for  the  advent  of  the  millennium  with 
the  vote.  In  the  twentieth  we  are  still  seeking  for  a  new 
freedom,  for  a  fresh  liberty,  which  some  would  call  moral 
and  some  economic.  What  is  liberty  without  a  living? 
*'  We  know,"  declared  the  Levellers  more  than  two  and  a 
half  centuries  ago,  "  that  England  cannot  be  a  free  common- 
wealth unless  all  the  poor  commons  have  a  free  use  and 
benefit  of  the  land."  ^  ''So  you  stand  upon  natural  right," 
Ireton  had  retorted  to  Rainsborough  in  one  of  the  great 
army  debates  of  1647,  "  then  show  me  the  difference  between 
the  right  to  a  vote  and  the  right  to  subsistence."  ^  Ireton 's 
purpose  had  been  to  explode  the  right  to  a  vote;  but  the 
justice  of  political  liberty  once  conceded,  it  is  hard  to  defend 
the  justice  of  economic  dependence. 

1  G.  M.  Trevelyan,  England  under  the  Stuarts,  p.  283  n. 
,  ,,  2  Morley,  Cromwell,  p.  231. 


PARLIAMENT  AND  LIBERTY  183 

The  ceaseless  struggle  for  liberty  has  therefore  taken  at 
last  an  economic  turn.  The  liberties  of  Magna  Carta 
implied  the  servitude  of  villeins;  the  enfranchisement  of 
villeins  portends  the  **  servile  state."  For  the  liberties  of 
masters  we  have  the  liberties  of  men,  and  for  the  subordina- 
tion of  the  many  the  restriction  of  the  few.  The  rise  of 
democracy,  like  every  other  struggle  for  liberty,  ended  by 
becoming  a  struggle  for  supremacy.  But  it  did  not  solve 
the  problem  of  liberty.  Even  the  democrats  feel  that 
freedom  is  not  identical  with  the  rule  of  the  majority;  and 
syndicalism  is  a  reversion  to  medieval  liberty,  in  that  it  is 
an  attempt  to  substitute  group-control  for  state-control, 
a  sort  of  democratic  feudalism,  a  compromise  with  anarchy, 
and  a  counterpart  of  the  capitalistic  feudalism  of  the  trusts. 
But  the  restoration  of  particularism  would  mean  anarchy, 
and  anarchy  is  more  fatal  to  common  liberty  than  any  form 
of  polity,  because  it  leaves  the  common  man  at  the  mercy 
of  his  unscrupulous  or  over-mighty  neighbour.  Sovereignty 
is  the  only  bulwark  against  civil  war,  the  only  arbiter  of 
rival  claims,  and  the  only  guarantee  of  peaceful  liberty; 
and  sovereignty  can  only  be  the  national  will  expressed  in 
parliament.  Parliament  alone  can  expand  and  redistribute 
economic  liberty,  as  it  has  expanded  and  converted  the 
private  liberties  of  the  middle  ages  into  the  common  rights 
of  modern  times.  Its  arbitrament  is  indispensable,  for 
otherwise  struggles  for  liberty  will  be  chronic,  barbarous, 
and  inconclusive.  The  individual  cannot  be  isolated  in 
the  state;  his  liberty  is  always  a  matter  of  relationship  to 
others ;  and  the  greater  the  liberty  of  any  particular  man,  the 
less  is  the  liberty  of  his  fellows.  Struggles  for  liberty  always 
end  in  struggles  for  supremacy,  because  liberty  depends  upon 
control.  My  liberty  consists  in  the  restraint  imposed  upon 
the  actions  of  other  men;  it  is  worth  nothing  if  they  are 
free  to  do  what  they  like,  and  theirs  is  a  phantom  if  mine 
is  absolute.  Liberty  uncontrolled  is  the  licence  of  t5n:anny, 
and  the  alpha  and  omega  of  common  liberty  is  the  common 
restraint  of  the  individual. 

There  is  only  one  solution  of  the  problem  of  liberty,  and 


i84  THE  EVOLUTION  OF  PARLIAMENT 


^ 


it  lies  in  equality.  Without  some  equality  there  can  be  no 
common  liberty;  and  the  equalization  of  liberty  has  been 
one  of  the  greatest  achievements  of  parliament.  There 
are,  indeed,  endless  kinds  of  equality,  some  of  them  idle 
dreams,  some  pernicious,  others  desirable,  and  some  accom- 
plished. Abstract  or  mathematical  equality  has  no  value 
amid  the  infinite  and  inevitable  inequalities  of  human  con- 
ditions ;  and  the  most  fervent  apostles  of  human  equalities 
do  not  hope  to  go  further  in  the  promotion  of  equality  in 
physique  than  giving  every  child  an  equal  chance  of  healthy, 
development.  But  more  has  been  done  than  that  with 
regard  to  the  results  or  implications  of  physical  inequality. 
Men  vary  in  physical  strength;  but  so  far  as  their  social 
relations  go  that  inequality  has  been  abolished.  The  weak 
are  as  safe  as  the  strong  in  civilized  communities,  and  the 
strong  are  effectually  prevented  from  using  their  strength 
to  the  detriment  of  their  weaker  neighbours.  Yet  there 
must  have  been  a  period  in  social  evolution  when  this  refusal 
to  permit  the  strong  man  to  do  what  he  liked  with  his  own 
physical  strength  seemed,  at  least  to  the  strong,  an  outrageous 
interference  with  personal  liberty.  Of  what  use  was  his 
strength  unless  he  could  use  it  as  his  taste  or  conscience 
suggested?  There  is,  in  fact,  no  more  reason  why  a  man 
should  be  allowed  to  use  his  wealth  or  his  brain  than  his 
physical  strength  as  he  likes;  and  the  principle  which 
controls  the  one  should  also  control  the  other.  No  one 
hopes  to  equalize  physical  strength ;  no  sane  person  expects 
to  equalize  wealth  or  mental  equipment.  But  liberty  in 
the  employment  of  each  should  be  restrained  by  the  same 
social  considerations.  The  liberty  of  the  weak  depends  upon 
the  restraint  of  the  strong,  that  of  the  poor  upon  the  restraint 
of  the  rich,  and  that  of  the  simpler-minded  upon  the  re- 
straint of  the  sharper.  Every  man  should  have  this  liberty 
and  no  more,  to  do  unto  others  as  he  would  that  they 
should  do  unto  him;  upon  that  common  foundation  rest 
liberty,  equality,  and  morality. 

That  is  the  golden  rule  for  the  liberties  of  the  subject. 
Others,  it  is  true,  must  possess  more  extended  powers.    A 


PARLIAMENT  AND  LIBERTY  185 

police  constable  and  a  prime  minister  must  have  wider 
liberties  than  the  private  citizen ;  but  these  are  matters,  not 
of  right,  but  of  obligation,  service,  and  responsibility. 
Their  liberties  are  their  duties,  imposed  upon  them  by  the 
community ;  and  the  greater  the  liberty,  the  more  exacting 
the  obligation.  Freedom  is  grounded  in  service  :  as  of  old 
in  England  a  man  was  a  voter  because  he  served  on  a  jury, 
so  to-day  a  man  wields  power  because  he  is  a  minister. 
We  have  princes  and  governors  galore,  but  their  ministers 
are  their  masters,  because  they  are  responsible.  It  has 
been  the  supreme  good  fortune  of  England  that  her  consti- 
tutional history  and  her  liberties  started  from  service  and 
duty,  and  not  from  the  rights  of  man.  These  were  the 
natural  product  of  an  impious  generation  which  ignored 
man's  obligations,  and  looked  upon  him  as  an  anarchist 
to  be  judged  by  the  liberties  he  seized  and  not  by  the 
services  he  rendered.  *'  They  made  and  recorded,"  said 
Burke,  "  a  sort  of  institute  and  digest  of  anarchy  called  the 
'  Rights  of  Man.'  "  ^ 

Absolute  rights  are,  indeed,  fatal  to  society,  and  it  would 
be  easy  to  strangle  a  community  with  liberty  and  property. 
One  of  the  causes,  said  Hobbes,  which  tend  to  the  dissolution 
of  a  commonwealth,  is  the  idea  that  the  subject  possesses 
such  a  right  of  property  as  excludes  the  sovereign.  No 
taxation  could  be  raised  if  the  individual  had  an  absolute 
right  to  all  his  property,  and  no  railway  could  have 
been  constructed  without  acts  of  parliament  overriding  the 
liberty  of  landlords  to  do  what  they  liked  with  their  own. 
But  if  property  has  its  liabilities  and  its  limitations  for 
the  sake  of  the  common  good,  so  too  has  labour.  If,  for 
instance,  the  interest  of  the  consumer  is  a  valid  objection  to 
a  protective  tariff,  it  can  also  be  pleaded  against  a  minimum 
wage.  If  the  interest  of  the  community  is  the  supreme 
consideration,  it  must  be  superior  to  the  liberty  of  any  section ; 
and  any  differentiation  must  be  based,  not  on  the  absolute 

*  Speech  on  Army  Estimates,  1790,  in  Works,  ed.  1834,  i-  37^ »  Boston 
ed.  1S65-7,  iii-  221.  Burke  referred  to  the  French,  and  not  to  the 
American  "  Rights  of  Man." 


i86  THE  EVOLUTION  OF  PARLIAMENT 

right  of  any  class,  but  on  the  value  which  concessions  to  a 
particular  class  may  have  for  the  community  as  a  whole. 

The  only  criterion  of  such  issues  is  the  common  sense  and 
conscience  of  the  community  expressed  by  means  of  parlia- 
ment. On  that  all  liberty  must  depend.  It  is  thought  by 
many  that  such  decisions,  which  are  fundamentally  questions 
of  morals,  should  rest  with  the  church,  and  not  with  the  state. 
But  churches  are  many,  and  they  do  not  always  agree. 
Judgement  by  churches  would  be  judgement  by  groups, 
with  no  final  arbiter  in  case  of  divergence ;  and  divergence 
without  a  suprepie  tribunal  involves  an  ultimate  appeal  to 
the  barbarous  arbitrament  of  social,  political,  or  economic 
warfare.  To  some  institution  representing  the  whole  com- 
munity we  must  therefore  have  recourse ;  and  in  its  service 
we  must  seek  our  liberty.  Medieval  liberty  was  a  monopoly, 
an  irresponsible  trust;  modern  liberty  should  be  a  trust 
for  the  community;  and  given  that  equal  condition,  there 
need  be  no  equality  in  the  powers  entrusted.  Much  is 
required  from  him  to  whom  much  is  confided.  There  need 
be  no  servitude  in  that  service  and  no  servility  in  that 
state.  Obedience  to  a  tyrant  is  slavery,  but  the  service 
of  mankind  is  liberty.  The  proudest  of  the  titles  of  the 
pope  is  servus  servorum  Dei,  and  the  highest  ambition  of  an 
Englishman  is  to  be  prime  minister,  the  chief  servant  of 
the  people.  The  nearer  we  get  to  a  perfect  master,  the 
nearer  does  our  service  approach  to  perfect  freedom. 


'  CHAPTER  X 

PARLIAMENT  AND  THE  CHURCH 

The  progressive  interference  of  parliament  with  medieval 
liberties  inevitably  involved  a  conflict  with  the  church,  for 
the  Church  in  England  was  the  greatest  and  most  august 
embodiment  of  medieval  liberties,  and  the  first  clause 
of  Magna  Carta  guaranteed  that  the  ecclesia  anglicana 
should  be  free.  To  that  clause  the  great  charter  owes  not 
a  little  of  the  admiration  it  excites  in  modern  times.  It  is 
a  clause  which  appeals  with  equal  force  to  the  catholic  and 
to  the  free  churchman;  and  no  principle  commands  more 
general  acceptation  than  that  which  is  read  by  different 
schools  of  thought  into  the  opening  words  of  John's  surrender. 
It  is,  however,  a  singular  fact  that  the  liberty  thus  guaranteed 
to  the  church,  and  explained  in  the  following  clause  to  be 
freedom  of  election,  is  a  liberty  of  which  the  church  was 
effectually  deprived  four  centuries  ago.  It  is  true  that  under 
the  Reformation  settlement  the  crown  issues  a  congi  d'elire 
w^henever  an  episcopal  vacancy  has  to  be  filled,  and  that  the 
chapter  concerned  meets  and  elects  its  head.  But  the  conge 
d'elire  is  speedily  followed  by  letters  missive  in  which  the 
crown  designates  the  person  to  be  elected ;  failure  to  comply 
involves  liability  to  the  penalties  of  prcBmunire,  that  is, 
total  forfeiture  of  goods  and  imprisonment  for  life ;  and  the 
fact  that  no  chapter  has  ever  braved  these  penalties  by 
neglecting  to  elect  the  crown's  nominee  must  be  accepted 
as  proof  that  the  church  has  been,  and  is,  content  to  forgo 
the  liberty  granted  by  Magna  Carta.  These  matters 
were  settled  by  statute  in  the  sixteenth  century,  and  the 
instrumentality     of    parliament     in    the    suppression    of 

187 


i88  THE  EVOLUTION  OF  PARLIAMENT 

ecclesiastical  freedom  harmonizes  with  its  general  attitude 
towards  medieval  liberties.  But  before  discussing  the 
relations  between  parliament  and  the  church,  it  is  well  to 
attempt  some  definition  of  our  terms. 

The  church  has  many  meanings ;  indeed,  it  might  almost 
be  said  that  the  long  story  of  theological  controversy  turns 
mainly  on  its  interpretation.  Apart  from  the  church  in- 
visible, the  church  visible  may  mean  the  whole  church  of 
God  or  any  particular  branch  thereof  to  which  the  speaker 
belongs;  every  churchman,  free  or  other,  will  limit  the 
church  by  his  definition  of  the  faith ;  and  the  more  numerous 
the  articles  of  his  faith  the  smaller  will  be  the  number  of  the 
faithful.  The  medieval  catholic  was  less  perplexed  about  his 
frontiers ;  there  was  but  one  church  and  one  great  schism. 
The  Greek  and  the  Roman  communities  belonged  to  one 
catholic  church,  though  each  regarded  the  other  as  schismatic. 
But,  while  more  comprehensive  in  this  respect,  the  medieval 
church  was  more  circumscribed  in  another.  No  layman 
could  be  a  churchman ;  the  ecclesia  was  composed  of  ecclesi- 
astics. The  distinction  survives  in  popular  parlance,  and 
**  to  enter  the  church  "  is  the  vernacular  for  taking  holy 
orders  and  becoming  an  ecclesiastic.  Modern  confusions,  no 
doubt,  have  crept  in;  "  churchman  "  is  used  with  a  some- 
what offensive  implication  to  distinguish  Anglican  laity  and 
clergy  alike  from  nonconformists  and  from  Roman  catholics, 
and  on  theological  grounds  it  is  held  that  one  "  enters  the 
church "  at  baptism.  But  this  is  not  the  language  of 
medieval  times.  When  parliament  or  the  council  speak, 
as  they  often  do,  of  tous  estats  de  sainte  eglise,  they  do  not 
include  a  single  layman ;  and  even  as  late  as  the  seven- 
teenth century,  when  Bacon  describes  Henry  VII's  coun- 
tenance as  being  "  reverend  and  a  little  like  that  of  a 
churchman,"  he  is  not  contrasting  it  with  that  of  a 
nonconformist  or  that  of  an  unbaptized  infant.^ 

The  point  is  of  some  importance,  because  no  understanding 
is  possible  of  the  relations  between  church  and  state  without 
clear  conceptions  upon  it,  and  the  confusion  between  modern 

1  Bacon,  Henry  VII,  ed.  1870,  p.  402. 


PARLIAMENT  AND   THE   CHURCH  189 

and  medieval  ideas  is  widespread  and  persistent.  It  has, 
for  instance,  been  recently  remarked,  in  an  attack  upon 
Maitland's  views  of  canon  law,  that  the  statutes  of  provisors 
and  praemunire  were  passed  "  by  representative  bodies  of 
Anglican  churchmen."  ^  But  "  churchmen "  could  only 
be  translated  into  medieval  Latin  as  viri  ecclesiasHci  ; 
and  the  only  ecclesiastics  present  in  parliament  protested' 
unanimously  and  vigorously  against  the  passing  of  these 
acts.  There  was  the  clearest  and  sharpest  antithesis  between 
lay  and  clerical  authority,  between  courts  that  were  royal 
and  those  that  were  christian,  between  regnum  and  sacer- 
dotium.  Regnum  terrenum,  declared  a  medieval  publicist, 
est  malum  et  diabolicum  et  opponitur  regno  ccelesti."^  There 
was  nothing  in  common,  wrote  Queen  Mary  to  Cardinal  Pole, 
between  the  body  politic  and  the  body  ecclesiastical.^  The 
famous  altar-piece  at  Mansfield,  which  produced  so  profound 
an  impression  on  the  youthful  Luther,  represented  the  church 
as  a  ship  in  which  alone  lay  salvation  from  the  waters  of 
destruction;  no  layman  was  in  the  ship,  no  churchman  in 
the  water.  The  state  appeared,  at  least  at  times,  to  Hilde- 
brand  and  his  pontifical  successors  as  the  work  if  not  the 
sphere  of  the  devil. 

This,  no  doubt,  was  the  extreme  papalist  view,  in  which 
few  English  prelates  concurred.  For  after  all  the  state,  in 
England  at  least,  was  largely  the  work  of  their  hands 
and  the  sphere  of  their  activities.  They  sat  in  parliament, 
almost  monopolized  chancery,  and  were  often  predominant 
in  the  king's  council.  The  wordy  warfare,  in  which  papalists 
and  imperialists  developed  a  whole  literature  of  analogies 
and  abuse,  appealed  to  metaphysical  Germans  and  per- 
fervid  Italians  rather  than  to  stolid  Englishmen,  who  had 
not  the  same  personal  or  patriotic  concern  in  the  struggle 

1  Ogle,  Canon  Law,  1912,  p.  106,  although  Mr.  Ogle  himself  has  just 
(p.  103)  distinguished  between  the  medieval  meaning  of  "  churchmen  " 
and  the  "  fuller  modem  sense  which  includes  the  laity."  On  p.  60  he 
also  identifies  the  "  prelatz  et  autres  gentz  de  seinte  eglise  "  with  the 
royal  and  baronial  patrons  {Rot.  Pari.,  ii.  233).  Churchmen  are  defined  in 
the  Rot.  Pari,  for  1376  (ii.  336)  as  prelates  and  "hommes  de  Sainte  Eglise, 
c'est  assavoir,  chanons,  prebenders,  et  persons." 

*  Maitland's  Gierke,  p.  no.  ^  PqH  Epistolcs.  pt.  iv.  p.  119. 


I90  THE  EVOLUTION  OF  PARLIAMENT 

between  a  German  regnum  and  an  Italian  sacerdotium.  The 
investiture  controversy  was  feebly  reflected  in  England,  i 
where,  except  for  occasional  outbursts  from  Beckets  and 
Winchelseys,  churchmen  and  laymen  worked  well  together 
under  a  common  and  temporal  sovereign ;  and  the  compara- 
tive feebleness  of  the  roots  which  the  papacy  struck  in 
English  soil  helps  to  explain  the  ease  and  completeness  with 
which  they  were  torn  up  by  the  Tudors.  It  was  seldom  that 
an  English  prelate  went  so  far  as  archbishop  Winchelsey 
when  he  asserted  that  English  ecclesiastics  owed  a  twofold 
allegiance  to  the  pope  and  the  king,  and  that  their  allegiance 
to  the  pope  took  precedence  of  their  allegiance  to  the  king. 
The  medieval  contest  in  England  was  not  so  much  a  foreign 
war  between  English  monarchy  and  the  papacy  as  a  domestic 
struggle  between  lay  and  ecclesiastical  jurisdictions.  Some- 
times a  powerful  pope  took  over  the  lead  of  the  clerical  forces, 
but  more  often  it  was  an  insular  combat  of  barons  and  bishops, 
royal  prohibitions  and  episcopal  injunctions,  and  papal 
intervention  was  not  always  welcome  to  those  on  whose 
side  the  papacy  intervened. 

The  papal  yoke  lay  light  upon  the  conscience  of  the  average 
English  prelate,  perhaps  because  it  bore  so  heavily  on  his 
pocket;  and  the  oaths  of  fealty  exacted  by  the  Roman 
pontiff  were  probably  taken  with  mental  reservations  over 
and  above  the  express  reservation  contained  in  the  oath 
he  swore  to  the  king.  He  was  ever  a  baron  as  well  as  a 
bishop,  and  his  barony  was  a  bond  with  the  crown  not 
easily  ignored.  Moreover,  a  bishop  had  frequently  from  his 
youth  up  been  nurtured  in  the  service  of  the  crown.  Rome 
was  a  distant  place  to  the  medieval  Englishman;  only  one 
attained  the  papal  chair, ^  and  he  had  been  a  stranger  to 
England  from  his  youth.  English  cardinals  were  few  and 
far  between.  The  papacy  was  in  every  sense  a  foreign 
government,  for  which  there  was  little,  if  any,  enthusiasm 
among  the  ranks  even  of  English  churchmen.  Maitland's 
jest  about  Anglo-Catholics,  who  believe  that  the  English 
church  was  protestant  before  the  Reformation  and  has  been 

*  Nicholas  Breakspear,  who  was  Pope  as  Adrian  IV  from  1154  to  "SQ- 


PARLIAMENT  AND   THE   CHURCH  191 

catholic  ever  since,  was  perhaps  deserved;  but  it  is  quite 
probable  that  there  have  been  more  sincere  adherents  of  the 
papacy  in  England  since  the  breach  with  Rome  than  there 
were  before  it.  The  dogma  of  papal  supremacy  was  academic 
and  disputable  in  orthodox  circles  till  the  close  of  the  middle 
ages.  (Ecumenical  councils  deposed  popes  one  after  another ; 
and  the  Pilgrims  of  Grace  had  little  to  say  for  the  pontiff. 
He  was  not  an  integral  part  of  the  catholic  faith,  and  there 
were  other  supports  than  the  papacy  for  the  Catholicism  of 
medieval  England.  But  after  the  breach,  and  still  more 
after  the  Edwardine  Reformation,  the  papacy  seemed  the 
only  bulwark  of  the  catholic  church;  Catholicism  became 
bound  up  with  Rome,  and  most  catholics  dedicated  to  the 
pope  their  loyalty  to  the  faith.  There  was  a  new  and  a 
stronger  bond  between  Rome  and  English  cathoHcs  than 
had  existed  in  the  middle  ages. 

But  this  old  Enghsh  indifference  to  the  papacy  did  not 
imply  the  independence  of  the  English  church.  During  the 
later  middle  ages  English  churchmen  were  devoted  to 
a  Catholicism  which  they  did  not  identify  with  the  papacy, 
but  they  feared  and  detested  the  approaches  of  nationalism. 
The  arguments  for  English  ecclesiastical  independence  gener- 
ally fall  very  wide  of  the  mark.  Nothing,  for  instance,  could 
be  more  misleading  than  the  contention  that  Henry  VHI 
did  no  more  than  William  I  had  done  when  he  claimed  to 
determine  which  pope  should  be  recognized  in  his  dominions. 
Henry  eradicated  the  jurisdiction  altogether  :  William  merely 
asserted  a  voice  in  the  determination  who  should  wield  it. 
He  no  more  thought  of  abohshing  papal  jurisdiction  than  the 
Whigs  thought  of  establishing  a  republic  when  they  sub- 
stituted William  III  for  James  II.  Nor  would  the  argument, 
if  sound,  establish  the  independence  of  the  English  church ; 
it  would  merely  establish  her  dependence  on  the  English 
monarchy. 

A  more  serious  source  of  error  is  confusion  of  chronology. 
It  will  not  do  to  build  fourteenth-century  independence 
on  arguments  from  the  Anglo-Saxon  period.  The  middle 
ages  were,  like  other  times,  a  period  of  change ;  and  what  is 


192  THE  EVOLUTION  OF  PARLIAMENT 

trae  of  one  century  is  false  of  another.  Provincial  independ^ 
ence  was  obviously  greater  before  the  catholic  church 
been  organized  by  Hildebrand  and  his  successors.  Cranmei 
selected  the  pontificate  of  Nicholas  II  (1058-61)  as  the  epoch 
at  which  the  church  became  corrupt,  or,  in  other  words, 
the  epoch  at  which  archbishop  Stigand  was  condemned  by 
papal  legates  and  provincial  independence  was  submerged 
in  catholic  organization.  It  might  be  safer  to  put  the  matter 
in  Stubbs's  fashion,  and  say  that  in  England  the  time  had 
come  for  Lanfranc  and  Anselm  as  well  as  for  William  of 
Normandy  and  Henry  of  Anjou.  The  point  is  that  Lanfranc 
and  Anselm  were  not  English;  they  represented  the  eccle- 
siastical aspect  of  the  Norman  Conquest  and  the  submerg- 
ence of  English  insularity  beneath  the  waves  of  continental 
culture.  From  that  time  for  two  centuries  there  was  even 
less  English  independence  in  the  church  than  in  the  state. 
The  law  and  the  language,  the  ritual  and  the  organization 
of  the  church,  all  came  from  abroad;  the  episcopate  was 
almost  closed  to  natives ;  and  there  was  nothing  national  in 
the  inspiration  of  the  monks  and  friars.  To  the  end  of  the 
thirteenth  century  England  was  catholic  to  the  core.  Our 
concern  here  is  with  the  two  and  a  half  succeeding  centuries, 
during  which  England  emerged  from  these  catholic  conditions 
and  parliaments  assisted  in  developing  the  nationalism  which 
involved  a  gradual  differentiation  and  then  independence 
of  type.  The  history  of  the  constitutional  relations  between 
parliament  and  the  church  turns  mainly  on  the  friction 
between  a  secular  body,  growing  more  and  more  national, 
and  an  ecclesiastical  body  clinging  more  and  more  closely 
to  the  international  system  on  which  it  was  based  and  from 
which  it  derived  its  support. 

The  antagonism  was  fundamental,  although  it  only 
developed  with  the  growth  of  the  English  national  state; 
for  in  England  the  church  was  Latin,  but  the  state  Teutonic. 
In  Latin  communities  the  conflict  was  less  pronounced  and 
the  Reformation  made  little  way,  for  there  both  state  and 
church  were  based  upon  identical  Roman  principles ;  empire 
and  papacy,  said   Zwingli,  both  came  from  Rome.     Both 


PARLIAMENT  AND   THE   CHURCH  193 

claimed  a  divine  and  not  a  popular  sanction. ^  In  Teutonic 
states,  on  the  other  hand,  the  ruler's  commission  came  from 
below,  not  from  above;  and  the  form  at  least  of  popular 
election  survived  the  attempts  of  the  church  to  base  secular 
monarchy  also  on  a  divine  right  conveyed  and  interpreted 
by  herself.  For  a  time,  indeed,  during  the  halcyon  days 
of  the  papacy,  the  Latin  ecclesiastical  view  obscured  the 
secular  and  Teutonic,  and  in  France  it  achieved  a  lasting 
victory.  But  in  England  the  growth  of  representation,  which 
enveloped  the  central  government,  withdrew  it  further  and 
further  from  the  domain  of  Latin  ideas.  A  divergence  set 
in  which  led  to  conflicts  of  jurisdiction  and  finally  ended 
with  the  submission  of  the  clergy  to  Henry  VIII. 

This  divergence  permeated  both  organisms.  The  papacy, 
that  ghost  of  the  empire  sitting  enthroned  in  the  midst  of 
the  ruins  thereof,  inherited  the  spirit  and  carried  on  the 
traditions  of  Caesar.  Its  law  was  the  law  of  Rome;  its 
principle  was  unlimited  monarchy ;  its  divisions  were  Roman 
provinces,  carefully  drawn  to  divide  and  undermine  national 
sentiment.  It  trusted  to  revelation  and  not  to  representa- 
tion. Its  legislation  consisted  of  papal  bulls  and  not  of  the 
acts  of  an  assembly;  its  courts  required  no  juries,  for  a 
system  claiming  infallibility  could  hardly  invoke  the  aid 
of  common  intelligence.  Its  taxes  were  not  voted,  but 
imposed.  The  clergy  in  England  granted  their  aids,  their 
tenths,  and  their  subsidies  to  the  king ;  they  granted  none  to 
the  pope,  because  he  took  them  without  their  leave.  First- 
fruits  and  tenths  were  not  voted  in  convocations ;  they  were 
levied  by  papal  command ;  and  the  "  taxatio  "  under  which 
the  clergy  groaned  was  named  after  the  pope  or  the  papal 
collectors. 2  The  pope  was  God's  vicegerent;  he  had  no 
need  of  consent.  Harmony,  no  doubt,  was  always  desired 
between  the  Vicar  of  Christ  and  his  flock,  but  harmony  must 

^  Both  emperor  and  pope  were,  indeed,  elected,  but  one  by  seven 
princes  and  the  other  by  cardinals. 

*  E.  g.  the  "  taxatio  Norvicensis  "  of  Walter  Suffield,  Bishop  of  Norwich 
and  papal  collector  in  1253,  and  the  "  taxatio  "  of  Pope  Nicholas  IV 
in  1291.     Cf.  Wilkins,  Cowcz7za,  iii.  646,  "  Alexander  VI  papa  .  .  .  imposuit 
clero  Anglicano  subsidium  unius  integrae  decimae." 
O 


194  THE  EVOLUTION  OF  PARLIAMENT 

be  secured  through  the  obedience  of  the  sheep  and  not  through 
the  shepherd's  concessions.  A  theocracy  could  not  parley 
with  popular  pretensions. 

The  Teutonic  state  was  more  a  matter  ot  compromise. 
Royal  elections  involved  electoral  promises,  and  Norman 
kings  themselves  began  their  reigns  with  charters  to  their 
people.  Even  before  parliaments  were  created,  royal  acts  of 
legislation  were  constitutions  rather  than  institutes,  measures 
set  up  by  agreement  and  consultation,  and  not  imposed  by 
sole  authority.  Kings  levied,  indeed,  their  rents  or  feudal 
services,  but  other  aids  and  scutages  had  to  be  given  them 
by  their  subjects ;  and  Edward  I's  maxim,  quod  omnes  tangit 
ah  omnihis  approbetur,  was  the  antithesis  of  the  principle 
of  papal  sovereignty.  With  the  growth  of  parliament  the 
necessity  for  consent  grew  ever  more  insistent,  and  with  it 
widened  the  breach  between  the  foundations  of  church  and 
state.  Edward  I  attempted  a  union  by  summoning  church- 
men and  laymen  alike  to  the  high  court  of  parliament ;  but 
the  reigns  of  his  son  and  his  grandson  witnessed  the  failure 
of  the  experiment,  and  in  course  of  time  the  side  which 
rejected  the  union  for  the  sake  of  independence  fell  into  a 
state  of  subjection. 

The  conflict  of  ideals  developed  a  practical  conflict  of 
jurisdictions.  It  was  not  a  simple  matter  of  warfare  between 
two  organisms,  each  with  its  own  code  of  laws ;  for  both  were 
subject  to  both  jurisdictions.  Churchmen  were  under  the 
law  of  the  land  as  well  as  under  that  of  the  church ;  laymen 
were  subject  to  canon  as  well  as  to  civil  law.  It  was  strife 
between  two  kinds  of  allegiance,  in  which  every  man  was 
divided  against  himself;  he  had  two  sovereign  lords,  the 
pope  and  the  king,  and  while  the  clergy  inclined  to  the  pope, 
the  laymen  preferred  the  king.  Each,  however,  made  his 
choice  at  no  little  risk  to  himself;  and  the  dilemma,  in 
which  the  soldier  may  find  himself  placed  to-day,  between 
the  risk  of  court  martial  if  he  refuses  when  ordered  to  fire 
upon  a  mob,  and  the  risk  of  trial  for  murder  if  he  obeys,  is 
a  rare  inconvenience  compared  with  the  distraction  of  the 
medieval  Englishman  between  the  courts  christian  and  the 


PARLIAMENT  AND   THE   CHURCH  195 

courts  of  his  king.  He  might  be  outlawed  if  he  obeyed 
the  church  and  excommunicated  if  he  obeyed  the  king.  He 
might  be  treated  as  a  bastard  by  royal  judges  and  as  legiti- 
mate by  the  authorities  of  the  church ;  for  the  famous  refusal 
of  the  barons  in  1236  to  assimilate  the  laws  of  England  to 
those  of  the  church  and  to  recognize  legitimation  by  the  sub- 
sequent marriage  of  parents,  had  no  effect  upon  ecclesiastical 
jurisdiction,  and  down  to  the  Reformation  the  ecclesiastical 
courts  administered  one  law  of  legitimacy  and  the  secular 
courts  another.^  He  might  be  granted  probate  by  one  court 
and  be  refused  possession  by  another ;  for  in  the  fourteenth 
century  the  church  was  encouraging  villeins  and  women  to 
make  wills,  which  the  commons  complained  in  parliament 
was  contrary  to  reason. ^ 

t^    Friction  between    the   two   jurisdictions  was  incessant, 
because  their  frontiers  were  disputed,  and  there  was  no 
supreme  court  to  settle  the  issue ;  the  two  supreme  authorities 
were  the  parties  to  the  suit.     Henry  II  attempted  a  settle- 
ment by  the   Constitutions  of  Clarendon,  and  Edward  I 
another  by  his  writ  of  circumspecte  agatis.    There  were  few 
acres  in  the  whole  field  of  secular  jurisdiction  which  might 
not  be  invaded  by  clerical  courts.     Everything  to  do  with 
maiTiage,  the  making  and  administration  of  wills,  and  the 
faith  was  left  as  a  matter  of  course  to  the  clergy,  though  an 
attempt  to  include  debt  among  matters  of  faith  provoked 
a  clause  in  the  Constitutions  of  Clarendon.     If  a  debt  was 
confirmed  by  an  oath,  it    brought  the  debtor  within  the 
sphere  of  ecclesiastical  jurisdiction ;  for  the  oath  was  inter- 
posita  fides,  it   established  a  direct   relation  between   God 
and  the  debtor,  and  of  those  relations  the  church  was  the 
only  arbiter.^    These  were  questions  which  drew  the  laity 
into  the  clerical  courts;    still  greater  efforts  were  made  to 
keep  the  clergy  out  of  the  clutches  of  the  secular  law,  and 

1  Maitland,  Canon  Law,  pp.  53-4 ;  Makower,  Const.  Hist.,  pp.  422-3 ; 
Rot.  Pari.,  ii.  153,  171;  Letters  and  Papers  of  Henry  VIII,  vii.  1385. 

2  Rot.  Pari.,  ii.  148-51. 

3  The  attempts  to  draw  debts  and  other  secular  contracts  into  the 
courts  christian  were  the  subject  of  perpetual  complaint  in  parliament; 
cf.  Maitland,  Memoranda,  p.  305;  Rot.  Pari.,  i.  219,  293,  ii.  142. 


196  THE  EVOLUTION  OF  PARLIAMENT 

the  most  resounding  blows  in  the  conflict  between  the  two 
jurisdictions  were  struck  over  the  corpus  vile  of  the  criminous 
clerk.  Maitland  has  illumined  the  legal  intention  of  Henry 
IFs  proposals  without  attempting  an  estimate  of  their  results. 
But  it  seems  clear  that  victory  rested  with  the  church  : 
judgement,  indeed,  appears  to  have  gone  to  the  secular  court, 
but  execution  remained  in  the  tender  hands  of  ecclesiastical 
authority  which  was  precluded  from  shedding  blood.  In 
1351,  in  answer  to  a  petition  of  the  clergy,  Edward  III 
maintained  his  jurisdiction  over  churchmen  so  far  as  high 
treason  was  concerned,  but  admitted  benefit  of  clergy  for 
murder  and  other  crimes  on  condition  that  the  church 
inflicted  perpetual  penance  and  prison — a  condition  that  was 
kept  with  exceeding  laxity.^  Benefit  of  clergy  continued  to 
shield  the  clerical  criminal  to  the  end  of  the  middle  ages, 
and  the  chief  liberty  of  the  church,  exclaimed  a  puritan  in 
Elizabeth's  parliament,  had  been  a  liberty  to  sin.^ 

This  conflict  of  jurisdictions  was  fatal  to  a  parliamentary 
union  between  church  and  state;  for  parliament  was  a 
court  of  law,  but  only  a  court  of  secular  law,  and  a  supreme 
court  from  which  spiritual  jurisdiction  was  withheld  had 
little  attraction  for  churchmen.  Laymen  had  been  drawn 
to  Westminster  because  parhament  was  held  three  times  a 
year  to  redress  grievances  and  settle  disputes  about  which 
the  judges  were  in  doubt.  The  clergy,  indeed,  participated 
in  so  far  as  they  were  subject  to  secular  law,  and  clerical 
proctors  presented  clerical  petitions  in  parliaments  as  late 
as  the  reign  of  Edward  III.^  But  parliaments  provided  no 
remedy  for  abuses  in  the  clerical  courts;  no  writs  of  error 
could  right  a  spiritual  wrong  in  parliament,  and  for  redress 

1  Rot.  Pari.,  il.  244.  The  control  of  the  courts  christian  over  the 
criminous  clerk  ceased  of  course  when  the  clerk  ceased  to  be  a  churchman ; 
but  only  the  church  could  degrade  him  into  a  layman. 

2  D'Ewes,  Journals,  p.  167. 

3  Triers  of  clerical  petitions  in  parliament  were  appointed  in  1347-8 
{Rot.  Pari.,  ii.  164).  In  1366  there  were  petitions  from  the  four  mendicant 
orders  and  the  universities  of  Oxford  and  Cambridge,  which  were  not 
represented  in  parliament  {ibid.,  ii.  290) ;  and  in  the  Good  parliament 
of  1376  petitions  were  presented  from  the  clergy  of  the  province  of 
Canterbury,  though  it  does  not  appear  that  those  clergy  were  represented 
{ibid.,  ii.  357). 


PARLIAMENT  AND   THE   CHURCH  197 

against  their  official  superiors  the  clergy  must  look  elsewhere ; 
appeal  from  them  lay  not  to  the  king  at  Westminster,  but 
to  the  pope  at  Rome.^  The  laity  also  suffered  from  this 
disability,  but  it  went  more  to  the  heart  of  the  church. 
Parliament  was  not  the  final  resort  for  matters  in  which 
the  affections  of  churchmen  were  mainly  involved.  The 
-original  motive  which  led  to  lay  demands  for  regular  parlia- 
ments did  not  exist  for  the  church;  and  its  absence  rein- 
forced the  other  inducements  which  counselled  the  clergy  to 
abstain  from  participation  in  parliamentary  business.  The 
judicial  system  which  linked  the  representatives  of  the  laity 
to  parliament  did  not  bind  the  church  to  a  temporal  court ; 
trial  by  their  peers  in  parliament  was  repudiated  by  the 
prelates,  and  churchmen  contended  "  that  no  clerk  would  be 
arraigned  before  the  king's  judges  on  any  criminal  charge, 
since  for  such  cause  no  soul  could  judge  them  save  the 
pope.    ^ 

Nor  would  they  submit  to  the  taxation  of  their  spiritualties 
in  parliament.  The  essence  of  frankalmoign,  or  spiritual 
tenure,  was  its  immunity  from  temporal  jurisdiction,  and 
freedom  from  parliamentary  taxation  seemed  a  natural 
corollary  of  freedom  from  parliamentary  jurisdiction.  The 
claim  appears  in  time  to  have  been  extended  to  all  the  pro- 
perty of  the  church,  and  clerical  taxes  were  voted  in  con- 
vocations and  collected  by  clerics  appointed  by  the  prelates.^ 
The  clergy,  indeed,  were  a  body  of  men  set  apart  from  the 
community,  and  the  indelible  character  of  priesthood  sancti- 
fied their  liberty.  There  is  some  justification  for  the  protest 
against  regarding  church  and  state  as  two  independent 
and  rival  communities,  and  for  the  contention  that  the 
"  respublica  Christiana  "  was  a  single  community  governed 
by  two  sets  of  officers,  the  spiritual  and  the  temporal  magis- 


1  Cf.  Memoranda  de  Pari.,  pp.  34,  82,  111-12. 

2  Rot.  ParL.ii.  151-3. 
*  See  my  Reign  of  Henry  VII,  ii.  39-43.     The  voting  of  clerical  taxes   1 

in  convocation  instead  of  in  parliament  dates  back  at  least  to  1339. 
when  the  Archbishop  of  York  was  adjured  in  parliament  to  urge  his 
clergy  to  make  liberal  grants  in  their  forthcoming  convocation  at  York 
{Rot.  Pari.,  ii.  105-6). 


198  THE  EVOLUTION  OF  PARLIAMENT 


1 


trates.^  But  we  cannot  explain  the  issue  of  their  strife 
by  leaving  out  of  account  the  army  they  strove  to  command. 
Constitutionally  the  ecclesia  was  a  body  of  ecclesiastics,  a 
corps  of  officers  without  any  private  soldiers.  The  privates 
at  least  were  entitled  to  no  benefit  of  clergy;  they  took  no 
part  in  electing  clerical  proctors,  and  were  not  represented 
in  the  councils  of  the  church.  Clerical  representatives  repre- 
sented no  one  but  the  clergy,  and  the  house  of  commons 
would  have  resembled  convocation  if  it  had  been  elected 
by  temporal  magistrates.  The  circumstance  that  the  bulk 
of  the  English  people  was  represented  in  parliament,  but  not 
in  convocation,  has  been  the  decisive  factor  in  the  constitu- 
tional conflict  between  the  regnum  and  sacerdotium.  The 
contest  had  not  been  unequal  so  long  as  parliaments  consisted 
solely  of  councillors;  but  Edward  I  began  to  enhst  the 
services  of  the  English  people  in  parliament,  and  thus  decided 
beforehand  the  issue  which  was  brought  to  a  head  by  Henry 
VIII. 

There  were  causes  enough  for  the  aloofness  and  aversion 
from  parliaments  shown  by  the  church  in  the  middle  ages. 
Some  were  common  to  it  and  to  other  orders,  and  we  have 
seen  how  the  numbers  of  attendant  barons  and  burgesses- 
dwindled  during  the  fourteenth  and  fifteenth  centuries. 
The  service  was  irksome,  and  the  clergy  disclaimed  their 
liability.  With  them  it  was  not  a  question  of  dwindling 
by  special  grace,  but  of  total  exemption  by  right.  The 
bishops,  of  course,  and  the  abbots,  who  held  baronies  of  the 
crown,  were  summoned,  or  were  liable  to  be  summoned,  as 
barons ;  and  their  only  escape  was  to  disown  their  baronial 
tenure.  But  the  crown  had  a  feeble  claim  to  the  suit  and 
service  of  clerical  proctors  in  the  high  court  of  parliament : 
they  were  not  individually  tenants-in-chief,  and  they  did 


1  Figgis,  "  Respublica  Christiana  "  in  Trans.  Royal  Hist.  Soc,  3rd  Scr., 
V.  63-88.  Curiously  enough  Dr.  Figgis'  view  is  that  of  Marsiglio  of  Padua, 
who  insists  on  the  sovereignty  of  the  universitas  fidelium,  as  represented  by 
the  Prince.  But  Marsiglio  was  a  prophet  of  the  Reformation  rather  than  an 
exponent  of  the  medieval  church.  There  are  worse  theories  of  the  origin  of 
the  Reformation  than  that  which  ascribes  it  to  the  growth  of  Dr.  Figgis' 
idea  of  the  medieval  church. 


PARLIAMENT  AND   THE   CHURCH  199 

not,  like  the  knights  of  the  shire  and  burgesses,  represent 
collective  tenants-in-chief.  The  clergy  of  a  diocese  were  not 
a  communitas  which  farmed  its  own  shire,  or  belonged,  like 
a  borough,  to  the  royal  demesne.  Edward  I,  as  a  matter  of 
fact,  had  never  summoned  the  clergy  by  writ  to  parliament ; 
he  summoned  the  bishops  qua  barons,  but  merely  admonished 
them  to  bring  their  clergy  with  them.  The  writs  that  the 
priors,  archdeacons,  and  proctors  obeyed  were  not  royal,  but 
episcopal,  and  the  clergy  were  really  attending  upon  their 
bishops  and  not  upon  the  king. 

For  a  brief  period  down  to  1332,  and  possibly  later,  their 
attendance  was  twofold,  upon  the  bishops  in  parliament 
and  upon  the  bishops  in  convocation.     But  insistence  upon 
this  double  duty  was  quietly  resisted  by  the  clergy  and 
tacitly   abandoned   by   the   crown;    nothing    less   than    a 
royal  writ  could  secure  lasting  attendance  in  parliament,  and 
even  that  failed  to  constrain  most  of  the  abbots  to  come. 
When,  after  the  opening  of  each  parliament,  the  various 
estates  were    told   to   withdraw   and   consider   apart    the 
business  of  the  session,  the  clergy  had  not,  like  the  knights 
and  the  burgesses,   to   devise   a    new    domus    communis; 
they  already  possessed  in  convocation  a  domestic  organiza- 
tion, to  which  they  naturally  had  recourse,  and  there  they 
debated  their  grants  and  other  responses  to  the  demands 
of  the  crown.     So  far  they  were  acting  like  other  estates  : 
the  precise  difference  in  procedure  was  that,  instead  of 
returning  and  announcing    their   decisions   in   parliament 
through  the  mouth  of  the  Speaker,  they  communicated  them 
through   the    prolocutor    of    convocation    or    through    the 
prelates.     As  late  as  1332  clerical  proctors  put  in  an  appear- 
ance in  parliament ;  but  they  deliberated  apart,  and  in  time 
their  appearance  in  parliament  ceased  altogether.     It  was 
considered  sufficient  that  convocation  should  meet  simul- 
taneously,  and  transact  apart    the  business  which  would 
otherwise  have  required  attendance  in  parliament.     Occa- 
sionally  the    view   was    expressed  that  the  assent  of  the 
clergy  in  parliament  was   essential  to   the  validity  of  its 
proceedings,  and  in  1397  Sir  Thomas  Percy,  steward  of  the 


200  THE  EVOLUTION  OF  PARLIAMENT 

royal  household,  was  appointed  a  clerical  proctor  for  this 
purpose.^  But  this  was  a  unique  occasion,  which  prefigured 
Thomas  Cromwell's  vice-gerency ;  and  the  unanimous  protest 
of  the  prelates  in  parliament  was  considered  no  bar  to  the 
statutes  of  pro  visors  and  praemunire. 

This  clerical  retreat  to  their  convocations,  however  costly 
it  may  in  the  end  have  proved  to  the  national  influence 
of  the  church,  evaded  some  difficulties  and  coincided  with 
ecclesiastical  traditions.  There  were  two  convocations, 
not  one,  and  when  the  clerical  proctors  ceased  attendance 
in  parliament,  those  for  the  northern  province  escaped  the 
toilsome  journey  to  London.  Their  convocation  met  at 
York,  and  its  gathering  there  gratified  the  provincial  feeling 
which  tended  to  separate  England  north  from  England  south 
of  the  Humber.  It  also  avoided  the  scandalous  scenes,  of 
which  there  was  always  a  risk,  when  the  two  archbishops 
met  in  the  same  assembly.  Each  prelate  was  jealous  of  his 
primacy,  and  neither  would  suffer  the  other  to  bear  his  cross 
before  him.  The  archbishop  of  Canterbury  had  no  juris- 
diction over  the  clergy  of  York,  and  York  had  none  over  those 
of  Canterbury.  They  were  entirely  independent  one  of 
the  other ;  the  only  links  between  them  were  their  common 
subordination  to  the  papacy  and  to  the  crown.  The  latter 
kept  them  in  order  in  the  king's  council  and  parliament, 
but  the  only  presence  that  could  secure  unity  in  an  ecclesi- 
astical assembly  in  medieval  England  was  that  of  a  papal 
legate  a  latere.^  Peace  could  be  kept  in  a  parliament  where 
the  archbishops  sat   as  tenants-in-chief   of   the   crown;    it 


1  Rot.  Pari.,  iii.  348,  356;  Cotton,  Records,  p.  368.  Percy's  was  a 
singular  appearance,  as  he  was  said  to  have  full  power  and  authority 
committed  to  him  by  the  prelates  and  clergy  of  the  realm,  not  of  one 
province  alone,  and  was  a  layman  to  boot.  In  this  capacity  he  joined 
in  the  condemnation  of  Archbishop  Arundel,  and  took  the  oath  "  pur 
et  en  nom  del  dit  clergie  "  to  observe  all  the  resolutions  adopted  by 
Richard  II's  Shrewsbury  parliament. 

2  The  so-called  "  national  "  councils  of  the  English  church  only  met 
when  the  presence  of  a  special  papal  legate  gave  them  "  national  "  unity 
by  imposing  a  superior  papal  authority  on  the  two  provincial  arch- 
bishops. The  links  between  Canterbury  and  York  were  never  both 
national  and  ecclesiastical :  when  they  were  national  they  were  secular, 
and  when  they  were  ecclesiastical  they  were  papal. 


PARLIAMENT  AND   THE   CHURCH  201 

could  not  be  guaranteed  where  clerical  proctors  sat  under 
rival  archbishops.  Either,  however,  could  reign  supreme 
in  his  own  provincial  synod. 

Of  greater  consequence  was  the  fact  that  this  provincial 
organization  fell  into  hne  with  the  whole  governmental 
tradition  of  the  church.  The  papacy  inherited  from  the 
empire  its  provincial  system,  and  Constantine  perpetuated 
the  work  of  Diocletian.  Nationalism  was  the  antithesis  of 
the  Roman  church  and  of  the  Roman  empire,  and  no  nation 
was  made  a  province  in  either  sphere;  each  was  divided 
into  two  or  more  provinces,  and  the  papacy  never  borrowed 
from  the  empire  with  greater  success  than  when  it  adopted 
the  imperial  maxim  divide  et  impera.  Had  not  the  English 
state,  through  the  instrumentality  of  the  crown  in  parlia- 
ment, developed  a  stronger  sense  of  nationality  than  the 
church,  there  could  have  been  no  national  reformation 
and  therefore  no  national  church.  The  "  estabHshment  " 
of  the  English  church  consists  in  the  secular  framework  of 
unity  which  the  national  state  imposed  upon  two  provinces  of 
the  Roman  church ;  it  could  only  be  achieved  by  a  complete 
repudiation  of  the  Roman  imperial  and  papal  tradition. 

Every  manifestation  of  nationalism  opened,  in  fact,  a 
fresh  breach  with  the  catholic  church.  The  growth  of 
English  language  and  literature  led  to  demands  for  the  use 
of  the  vernacular  in  the  services  of  the  church,  while  church- 
men clung  to  their  catholic  Latin  as  an  expression  of 
unchanging  unity  in  the  church  and  a  symbol  of  their  segre- 
gation from  the  people.  The  cry  for  the  bible  in  English, 
satisfied  at  first  by  translations  from  the  Vulgate,  produced 
at  length  translations  from  the  originals,  and  undermined 
the  authority  of  the  cathohc  standard.  The  growth  of 
national  legislation  in  parliament,  accompanied  by  the 
inroads  of  positive  man-made  law  upon  the  old  cosmopolitan 
laws  of  reason  and  of  nature,  produced  English  law  out  of 
the  international  legal  systems  of  medieval  Europe;  and 
the  more  English  our  secular  law  became  in  the  hands  of 
English  parhaments,  the  more  certain  and  incessant  would 
be  its  conflict  with  the  canon  law  of   the  church,  which. 


202  THE  EVOLUTION  OF  PARLIAMENT 

if  it  changed  at  all,  grew  ever  stranger  to  England.  Church 
and  state  in  England  could  agree  fairly  well  so  long  as  neither 
was  national ;  they  could  not  agree  when  one  became  more 
and  more  English  and  the  other  more  and  more  Roman, 
nor  even  while  one  was  becoming  national  at  a  much  greater 
pace  than  the  other.  An  insular  commons  and  a  catholic 
clergy  could  not  be  combined  in  an  English  parliament. 

We  must  not,  however,  imagine  that  the  barons,  or  even 
kings,  were  much  more  national  than  the  clergy;  and  to 
regard  their  interested  protests  against  papal  interference 
as  evidence  of  national  resentment,  is  hardly  more  rational 
than  to  regard  the  same  protests  as  proof  of  the  independ- 
ence of  the  church  of  England.  There  was  too  much  parti- 
cularism in  England  in  the  fourteenth  century  to  permit  of 
a  really  national  movement  against  the  papacy,  and  the 
petition  of  the  barons  in  1307  and  the  statutes  of  pro  visors 
and  praemunire  were  instinct  with  medieval  notions  of 
liberty.  They  were  designed  to  protect  the  peculiar  rights 
and  property  of  the  king  and  his  barons  against  ecclesi- 
astical encroachment,  and  the  animus  is  as  much  against  the 
clerical  courts  in  England  as  against  the  curia  at  Rome. 
The  barons  in  1307  contend  that  scinte  eglise  .  .  .  soil  funde 
par  le  roi  et  par  ses  ancestres  et  par  les  ditz  contes,  barons,  et 
leurs  ancestres,  and  that,  inasmuch  as  they  had  founded  the 
church,  they  were  entitled  to  its  advows.ons  untrammelled 
by  the  claims  of  the  ecclesiastical  courts  to  all  the  goods 
of  intestates  and  to  all  lands  not  specifically  mentioned  in 
testators'  wills.  They  complain  of  the  efforts  of  the  pope  and 
his  clerks  to  secure  cognizance  of  all  debts,  and  to  draw  into 
the  church  courts  all  suits  relating  to  the  temporaries  as 
well  as  to  the  spiritualties  of  churchmen ;  and  they  conclude 
with  a  rhetorical  anticipation  of  ruin  "  unless  God  arises 
and  His  enemies  are  scattered  "  by  the  temporal  prince 
and  his  council,  with  the  assent  of  the  nobles  and  magnates.^ 

1  Rot.  Pari.,  i.  219;  cf.  ibid.,  ii.  144-5.  The  description  of  the  act 
of  1351  as  "  the  first  statute  of  provisors  "  (Stubbs,  ii.  430)  is  somewhat 
misleading.  The  statute  of  Carlisle  in  1307  had  sought  to  protect  the 
advowsons  of  lay  patrons,  and  in  1343  parliament  endeavoured  to  secure 
its  better  execution,  but  no  answer  to  its  petition  is  recorded  on  the  "  Roll." 
The  statute  of  1351,  while  reciting  the  statute  of  Carlisle,  goes  on  to 
protect  the  English  ecclesiastical  patrons. 


PARLIAMENT  AND   THE   CHURCH  203 

This  sounds  like  a  first  blast  from  the  trumpet  of  Henry 
VIII,  but  the  note  is  very  baronial ;  the  church  is  "founded" 
on  property,  and  the  liberty  proclaimed  is  the  right  of  secular 
property  to  determine  spiritual  preferment.  The  same  is 
the  purport  of  the  statutes  of  provisors.  No  one  is  thinking 
of  the  national  liberties  of  the  English  church ;  the  freedom 
of  election  promised  in  Magna  Carta  has  already  disappeared, 
and  the  issue  is  between  papal  and  royal  or  baronial  nomina- 
tion. It  is  royal  and  baronial  rights  of  presentation  that  are 
to  be  protected  against  the  Vicar  of  Christ  and  his  appoint- 
ments; and  so  far  as  national  sentiment  was  involved,  it 
was  only  concerned  with  the  probability  that  EngUsh  barons 
would  prefer  more  English  clerks  than  would  a  French  or 
Italian  pope.  Already  Englishmen's  Catholicism  was  breaking 
down  before  their  prejudice  against  ahen  bishops;  but  the 
baronial  objection  to  papal  provision  was  the  same,  whether 
it  was  exercised  on  behalf  of  an  English  or  a  foreign  clerk. 
The  animus  of  the  statute  of  praemunire  was  somewhat  less 
sectional,  but  more  comprehensively  anti-ecclesiastical;  it 
was  aimed  against  all  infringements  of  royal  jurisdiction, 
whether  by  the  papal  curia  or  by  any  subordinate  ecclesi- 
astical court  in  England.  No  distinction  was  made  between 
them,  and  English  prelates  supported  the  papacy  with  their 
protests  in  parliament. 

Nothing,  indeed,  could  be  a  greater  travesty  of  the  truth 
than  the  representation  of  these  statutes  as  protests  of 
English  churchmen  against  the  pretensions  of  Rome.  After 
the  days  of  Grosseteste  there  were  few  clerical  protests  against 
the  papacy.  Ecclesiastical  chroniclers  continued  to  grumble 
for  a  time  at  papal  taxation;  but  they  were  soon  more 
concerned  with  the  encroachments  of  parliament  on  their 
immunities,  and  began  to  feel  that  the  liberty  of  the  church 
depended  on  papal  protection.  The  pope  was  the  supreme 
governor  of  the  church,^  and  English  churchmen  made 
common  cause  with  him  against  all  forms  of  temporal  juris- 
diction. The  endless  petitions  in  parliament  against  the 
papacy  are  all  petitions  of  the  commons,  against  which  the 
prelates  protest,   sometimes  with  and  sometimes  without 

1  Rot.  Pari.,  ii,  172. 


204  THE  EVOLUTION  OF  PARLIAMENT 

success.  The  only  point  upon  which  the  prelates  concurred 
with  the  commons  in  disputing  papal  claims  was  in  resistance 
to  the  payment  of  Peter's  pence. ^  It  was  the  laity,  not  the 
church,  which  attacked  papal  provisions,  reservations,  and 
even  firstfruits.^  There  were  many  clerical  petitions  pre- 
sented by  the  prelates  in  parliament,  but  not  one  was  anti- 
papal.  Their  purport  is  very  different :  they  complain 
bitterly  that  the  king's  courts  imprison  clerks  against  the 
law  and  liberties  of  the  church,  that  lay  ministers  enter  upon 
ecclesiastical  fiefs  in  retaliation  for  the  fines  and  dues  levied 
by  the  clergy,  that  aids  are  exacted  from  churchmen  who 
are  exempt  from  parliamentary  service  and  had  not  con- 
sented to  their  imposition,  that  people  are  forbidden  to 
pay  their  tithes  to  God  and  holy  church  until  the  king  is 
satisfied  of  his  taxes.  They  contend  that  the  king's  judges 
have  no  jurisdiction  over  clerks,  nor  even  over  the  laity  in 
such  matters  as  bigamy,  matrimony,  bastardy,  and  licences 
for  mortmain;  and  they  demand  that  prohibitions  issuing 
out  of  the  royal  courts  of  justice,  royal  commissions  of  inquiry 
into  the  working  of  ecclesiastical  courts,  and  summonses 
to  the  clergy  to  answer  in  chancery  suits  about  tithes  should 
cease,  and  that  churchmen  should  be  exempt  from  all  tolls, 
purveyance,  and  so  forth.^  These  were  the  coveted  liberties 
of  the  English  church;  they  constituted  freedom  from  the 
English  state,  not  independence  of  the  papacy. 

That  freedom  from  Rome  is  fictitious.  The  crown  might, 
and  did,  indeed,  by  means  of  its  temporal  jurisdiction  protect 
to  some  extent  English  churchmen  from  the  pope;  the 
ecclesiastical  courts  provided  no  protection  whatever.     The 

*  Rot.  Pari.,  ii.  290 ;  cf.  ii.  336-9,  The  assent  to  these  anti-papal  statutes 
is  always  limited  to  "les  contes,  barons,  et  autres  sages  lais  gentz  du 
conseil"  {ibid.,  ii.  161),  and  often  the  dissent  of  the  prelates  is  recorded 
[ibid.,  ii.  284-5,  iii.  264,  340-1). 

2  The  Commons'  petition  in  1373  and  1377  against  the  payment  of 
firstfruits  [Rot.  Pari.  ii.  320,  iii,  18)  is  an  interesting  anticipation  of 
sixteenth-century  legislation,  and  still  more  so  are  the  proposals  made  in 
parliament  in  1387  and  1413  that  they  should  be  paid  to  the  king  and  not 
to  the  pope  {ibid.,  iii.  214),  and  that,  owing  to  the  papal  schism,  bishops 
elect  should  be  confirmed  by  the  metropolitan  acting  upon  king's  writs 
without  further  excuse  or  delay  {ibid.,  iv.  71). 

8  Rot.  Pari.,  i.  392,  ii.  129,  151-3,  357-9,  iii-  25-7. 


PARLIAMENT  AND   THE  CHURCH  205 

famous  statutes  of  praemunire  set  no  limit  to  the  pope's 
control  over  English  ecclesiastical  courts;  their  object  was 
to  defend  the  king's  temporal  jurisdiction  from  papal  aggres- 
sion working  through  the  courts  of  the  church.  In  1348 
a  claimant  to  a  living  pursued  his  appeal  to  Rome ;  on  his 
return  to  England  he  was  sued  and  imprisoned,  not  because 
he  was  appealing  from  an  English  ecclesiastical  court  to  the 
papal  curia,  but  because  he  was  bringing  before  the  pope  a 
suit  belonging  to  royal  cognizance ;  and  his  defence  was  that 
the  living  was  held  in  spiritualty.^  To  appeals  from  English 
spiritual  jurisdiction  to  the  pope  the  English  crown  had 
not  the  least  objection  in  the  middle  ages ;  such  appeals  were 
often  facilitated  by  the  crown,  which  discountenanced  their 
reception  in  parliament. ^  It  was  its  own  temporal  jurisdic- 
tion that  the  crown  was  concerned  to  protect ;  and  it  insisted 
upon  that  protection  against  both  the  lower  courts  christian 
in  England  and  the  highest  court  christian  at  Rome. 

The  strife  was  ever  between  English  secular  courts  and 
catholic  spiritual  courts,  and  the  evidence  all  points  to  the 
natural  conclusion  that  English  churchmen  took  their  stand 
by  the  catholic  church.  Any  other  attitude  has  only  been 
made  to  appear  plausible  by  reading  back  into  the  middle 
ages  the  conditions  of  later  times,  when  the  hold  of  national- 
ism over  Englishmen's  minds  had  immensely  strengthened, 
and  the  hold  of  Catholicism  had  correspondingly  weakened  * 
and  the  unhistorical  creation  of  a  national  church  in  ^e 
middle  ages  is  the  offspring  of  a  desire  to  give  the  authority 
of  antiquity  to  a  conception  which  seeks  to  make  the  best  of 
both  ages,  and  to  combine  in  the  Anglican  church  of  to-day 
the  medieval  advantage  of  freedom  from  the  state  with  the 
modern  advantage  of  freedom  from  Rome.  That  twofold 
liberty  is  by  no  means  an  impossible  or  an  unworthy 
ideal,  and  the  historian's  only  objection  is  to  the  claim  of 
such  an  achievement  to  be  a  conservative  or  reactionary 
reproduction  of  medieval   conditions.     Similar  arguments 

'•    1  Rot.  Pari.,  li.  1786. 

*  E.g.  Ihid.,  i.  3,  40&,  41-2,  375&,  li.  151-3,  161;  Maitland,  Memoranda, 
pp.  34,  82,  111-12. 


2o6  THE  EVOLUTION  OF  PARLIAMENT 

from  an  imaginary  past  have  been  used  to  advance  the  causes 
of  Hberty,  sociaUsm,  and  nationahsm,  and  most  reformers 
have  decked  out  their  principles  of  progress  with  prehistoric 
plumage. 

To  the  medieval  churchman  his  duty  in  the  conflict  of 
laws  was  clear.     By  all  that  he  held  most  sacred  he  was  bound 
to  cleave  to  the  pope;    every  churchman  took  the  oath  of 
canonical  obedience,  while  an  oath  of  allegiance  to  the  king 
was  only  taken  by  tenants-in-chief  and  officials.     Those  who 
took  both,  such  as  bishops,  took  first  their  oath  to  the  pope, 
and  were  required  to  give  it  precedence.     If  they  committed 
treason,  it  was  for  the  pope,  and  not  for  the  king  or  for  the 
peers  in  parliament  to  condemn  them.     The  king,  indeed, 
maintained  the  contrary ;  but  when  Henry  IV  enforced  this 
view  at  the  expense  of  archbishop  Scrope,  his  deed  was 
regarded  with  horror  and  held  to  be  the  cause  of  the  king's 
subsequent  troubles.     Churchmen  stood  by  the  laws  and  the 
liberties  of  their  church ;  and  the  louder  grew  the  claims  of 
nationalism,  the  closer  they  clung  to  their  privileges  and  to 
the  protection  of  the  pope.    Some  prelates,  at  least,  preferred 
papal  provision  to  the  chances  of  election ;  ^  and  the  statute 
of  provisoes,  it  was  contended  in  1415,  stopped  the  prefer- 
ment of  university  students,  starved  the  church  of  learned 
clergy,  and  thus  promoted  the  growth  of  heresy  and  schism. 
The  commons  also  on  one  occasion  petitioned  the  crown  for 
a  remedy  against  the  evil  effects  of  that  royal  and  baronial 
legislation ;  ^  but  it  was  to  papal  protection  that  churchmen 
looked  more  and  more  for  the  safeguard  of  their  faith  and . 
for  the  security  of  their  liberties  against  the  encroachments 
of  parliament  and  of  the  royal  courts. 

In  the  face  of  these  disruptive  forces  the  wonder  is  not 
that  parliament  and  the  church  should  have  fallen  apart, 
but  that  churchmen  should  have  retained  so  long  the  position 
they  did.  Church  and  state,  however,  had  this  much  in 
common :  both,  in  the  higher  ranks  at  least,  had  been  per- 
meated with  feudal  influence ;  and  while  the  clerical  proctors 

*  Rot.  Pari.,  ii.  154. 

2  Ibid.,  iv.  81 ;   cf.  Nicolas,  Proceedings  of  the  Privy  Council,   i.   282, 
ii.  113. 


PARLIAMENT  AND   THE  CHURCH  207 

disappeared  from  the  houses  of  parhament,  bishops  and 
abbots  remained.  The  crown  might  excuse  the  attendance 
of  others,  or  allow  them  to  be  represented;  but  it  success- 
fully insisted  upon  the  liability  of  its  greater  tenants-in-chief 
to  a  summons,  and  imposed  fines  ranging  from  forty  to  a 
hundred  pounds  on  those  who  failed  to  obey.  The  force  of 
passive  resistance  prevailed  to  some  extent  even  among  the 
greater  tenants-in-chief ;  by  Edward  Ill's  reign  ^  twenty- 
eight  abbots  had  already  secured  definite  exemption  from  the 
customary  summons,  and  while  the  number  of  barons  sank 
from  a  hundred  to  less  than  fifty,  the  number  of  abbots 
declined  from  seventy-two  under  Edward  I  to  a  regular 
twenty-seven  under  Edward  Ill's  successors.  Of  the  twenty- 
seven  who  were  summoned  few  attended,  and  in  15 13  it  was 
declared  by  the  judges  that  the  presence  of  abbots  was  not 
essential  to  parliament. ^  When  the  philosophical  historian 
comes  to  describe  the  decline  and  fall  of  the  house  of  lords 
in  modern  times,  he  will  probably  attach  no  little  import- 
ance to  the  habitual  absence  of  most  of  the  peers  from  their 
parliamentary  duties ;  and  similarly  it  may  be  pointed  out 
that,  had  not  some  forty-five  abbots  evaded  their  summons 
to  parliament,  it  would  not  have  been  possible  for  Henry 
VIII  to  obtain  a  majority  for  the  dissolution  of  the  monas- 
teries. The  church  had  done  its  best  to  abandon  parliament 
before  parliament  surrendered  it  to  the  king. 

In  both  cases  the  abandonment  was  merely  the  outward 
sign  of  a  growing  distaste  and  lack  of  sympathy.  Churchmen 
would  have  continued  to  throng  the  high  court  of  parliament 
had  they  continued  to  feel  at  home  in  its  portals.  But  their 
heart  was  elsewhere ;  and  while  an  encroaching  nationalism 
increased  the  alienation,  it  weakened  the  feudalism  which 
bound  bishops  and  abbots  and  barons  to  the  crown  and  to 
one  another.  Hildebrand  had  dreaded  the  corruption  of 
the  church  by  feudalism ;  but  feudalism  had  at  least  saved 
the  church  from  an  isolation  in  which  it  could  only  stand 
secure  so  long  as  it  retained  its  incorruption.  The  bond 
between   the  church  and   parliament  was  weakened,  not 

*  Pike,  Const.  Hist,  of  the  House  of  Lords,  p.  349;   cf.  Rot.  Pari.,  ii.  119. 
2  Letters  and  Papers  of  Henry  VIII,  ii.  1131,  1313;   Pike,  p.  327. 


2o8  THE  EVOLUTION  OF  PARLIAMENT 

because  abbots  and  proctors  feared  corruption,  but  because 
they  evaded  their  duties  and  feared  the  loss  of  their  hberties. 
Taxation  of  themselves  by  themselves,  self-made  legislation, 
and  independence  of  everything  save  of  Rome,  were  their 
cherished  desires;  they  chose  isolation,  and  they  fell  from 
lack  of  support. 

There  was  nothing  strange  in  this  isolation.  The  association 
of  individuals  in  classes  and  the  dissociation  of  class  from 
class  were  characteristic  of  the  middle  ages ;  and  in  preferring 
to  concentrate  in  convocation,  instead  of  dividing  their 
attention  between  it  and  parliament,  the  clergy  were 
adopting  the  same  policy  as  the  commons  themselves. 
Indeed  the  consolidation  of  estates  in  the  house  of  commons 
imposed  upon  churchmen  the  alternative  of  absorption  or 
^  separation.  The  definite  parting  of  the  ways  is  commonly 
placed  in  the  reign  of  Edward  II;  but  clerical  proctors 
attended  at  least  at  the  opening  of  the  parliament  of  March 
1332,  when  the  prelates,  remarking  that  some  of  the  business 
propounded  by  Geoffrey  le  Scope  on  behalf  of  the  crown 
was  not  within  the  competence  of  the  clergy,  suggested  that 
they  and  the  clerical  proctors  should  separate  from  the 
laity  for  the  discussion  of  their  own  affairs ;  the  clergy,  too, 
were  dismissed  with  the  knights,  citizens,  and  burgesses  after 
the  six  days'  session,  while  the  prelates,  earls,  barons,  and 
councillors  were  ordered  to  remain.^  Similar  arrangements 
were  made  in  the  following  December;  but  it  had  already 
become  the  practice  to  hold  convocations  simultaneously 
with  a  parliament,  and  thither  the  clergy  resorted  when 
they  retired  from  the  parliament  chamber  to  discuss  their 
parliamentary  business.  The  clerical  committee  or  estate 
of  parliament  was  absorbed  in  the  lower  house  of  convoca- 
tion, and  it  became  impossible  to  distinguish  between  the 
personnel  or  the  action  of  the  clerical  proctors  summoned  to 
parliament  and  of  those  summoned  to  a  provincial  synod.^ 

1  Rot.  Pari.,  11.  64b,  65b.  67. 

2  Makower,  Const.  Hist,  of  the  Church,  p.  355.  Nor  Is  there  a  clear 
distinction  in  medieval  terminology,  though  now  It  is  usual  to  reserve 
the  word  "  convocation  "  for  the  provincial  assembles  of  Canterbury 
and  York  summoned  by  royal  writs,  with  the  prcsmunientes  clause,  as  a 


PARLIAMENT  AND   THE    CHURCH  209 

In  1339  it  is  clearly  in  convocation  that  the  clerical  proctors 
voted  their  grants  to  the  crown.^  The  dissociation  from 
parliament  involved  also  a  dissociation  of  the  proctors  of 
York  from  those  of  Canterbury ;  for  if  the  two  convocations 
ever  sat  together  (except  when  a  papal  legate  a  latere  held 
a  "  national "  council)  the  practice  was  soon  discontinued, 
and  at  the  close  of  the  middle  ages  the  convocation  of  York 
did  not  commonly  meet  at  the  same  date  as  that  of  Canter- 
bury or  as  parliament.  Indeed,  it  was  clearly  impossible 
for  the  archbishop  of  York  and  his  suffragans  to  be  simul- 
taneously in  their  places  in  parliament  at  Westminster  and 
in  convocation  at  York. 

Abstention  from  attendance  in  parliaments  on  the  part 
of  the  lower  clergy  did  not,  however,  mean  an  absence  of 
clerical  petitions;  and  at  first  the  clergy  seemed  to  lose 
nothing  by  their  retirement.  In  1340  their  petitions  were 
read  after  those  of  the  commons  by  the  king's  order,  and 
statutes  were  made  to  give  them  effect  with  the  assent  of 
all  the  estates. 2  A  hardly  less  pleasing  harmony  was 
exhibited  as  late  as  1376,  when  the  commons  of  York 
presented  a  petition  against  the  excessive  fees  extorted  by  the 
archbishop  from  his  clergy.^  But  by  that  time  harmony  was 
exceptional,  and  a  rift  had  developed  between  the  commons 
and  clergy.  The  petitions  of  the  clergy  continued,  throughout 
the  fourteenth  century,  to  be  presented  and  read  in  parlia- 
ments, and  the  practice  was  for  the  judges  to  be  required 
to  assemble  in  the  presence  of  some  of  the  prelates  and  pro- 
vide a  remedy.*  To  this  habit  the  commons  offered  an 
increasing  resistance,  and  in  1377  they  asked  that  no  ordin- 
ance should  be  made  in  parliament  without  their  leave 
on  a  clerical  petition,  and  that  the  commons  should  not 
be  bound  by  constitutions  adopted  in  convocation;  *'  for," 
they  declared,  "  they  do  not  wish  to  be  bound  by  any  statute 

part  of  the  parliamentary  system,  and  to  describe  the  other  provincial 
and  diocesan  assemblies,  summoned  merely  by  the  archbishops  and  bishops, 
as  "  synods."  Synods  might  be  summoned  at  any  time,  convocations 
only  with  parliament. 

1  Rot.  Pari.,  ii.  106.  2  ihid.,  ii.  113,  244. 

3  Ibid.,  ii.  352.  *  Ibid.,  ii.  358. 

P 


2IO  THE  EVOLUTION  OF  PARLIAMENT 

or  ordinance  without  their  assent."  ^  In  1382  they  secured 
the  repeal  of  a  statute  against  heretic  preachers,  on  the  ground 
that  it  had  been  enacted  without  their  consent,  and  they 
declared  their  determination  not  to  bind  themselves  or  their 
successors  more  to  the  prelates  than  their  ancestors  had  been 
in  times  past.^ 

This  rising  temper  proved  fatal  to  clerical  legislation  in 
parliament.  Petitions  from  individual  prelates,  clerks,  and 
clerical  corporations  continued  to  be  occasionally  presented 
in  the  Lancastrian  period;  but  the  collective  petitions 
of  the  clergy  disappear  from  the  proceedings  in  parliament, 
and  the  church  had  to  content  itself  with  its  limited  powers 
of  legislation  in  diocesan  and  provincial  synods.  This 
retreat  was  not  without  its  compensations.  The  sphere 
of  legislation  was,  indeed,  limited  to  the  affairs  of  the  church, 
but  those  affairs  extended  far  beyond  the  persons  and  the 
property  of  the  clergy  to  the  marriages,  wills,  faith  and 
ecclesiastical  dues  and  duties  of  the  laity;  and  no  royal 
or  other  lay  assent  was  needed.  This  autonomy  was,  of 
course,  restricted  by  papal  jurisdiction,  but  whatever  feeling 
had  existed  in  the  days  of  Langton  and  of  Grosseteste  against 
the  Roman  curia  had  weakened  before  the  nearer  enmity 
of  the  commons  assembled  in  parliament.  In  1389  the  pre- 
lates, alike  of  Canterbury  and  of  York,  solemnly  protested 
in  parliament  on  behalf  of  themselves  and  all  their  clergy 
that  they  repudiated  then,  as  they  had  always  repudiated 
in  the  past,  every  statute  tending  to  restrict  the  power  of 
the  pope  or  the  liberty  of  the  church,  and  required  their 
protest  to  be  enrolled  as  a  permanent  witness  to  their  deed.^ 
For  them  the  liberty  of  the  church  had  come  to  depend  upon 
the  jurisdiction  of  Rome.  Such  was  the  inevitable  result 
of  growing  aloofness  from  a  parliament  which  was  becoming 
more  and  more  the  focus  of  national  unity  and  the  organ 
of  national  independence. 

This  general  alienation  made  the  exception  to  it,  the 
retention  of  the  bishops  inparhament,  a  matter  of  enormous 

1  Rot.  Pari.,  ii.  368.         '      2  }ud.,  iii.  141;  Stubbs,  ii.  628. 
'  Ibid.,  iii.  264. 


PARLIAMENT  AND   THE  CHURCH  211 

consequence.  They  formed  the  hnk  between  church  and 
state,  being  themselves  both  barons  and  bishops ;  and  they 
were  the  pivot  upon  which  the  whole  government  of  medieval 
England  turned.  In  the  twelfth  and  thirteenth  centuries 
we  have,  indeed,  prelates  of  the  uncompromising  stamp 
of  Becket  and  Winchelsey,  who  were  churchmen  first  and 
last,  and  viewed  the  state  with  the  eyes  of  an  Innocent  III 
or  a  Boniface  VIII.  But  from  the  fourteenth  century  we 
get,  as  a  rule,  prelates  of  the  type  of  Wykeham  and  Morton, 
less  single-minded  as  churchmen,  but  more  patriotic  as  states- 
men. Rightly  they  held  it  their  function,  not  to  press  to 
extremes  the  claim  of  their  order,  but  to  mediate  between 
the  opposing  forces.  They  tempered  clerical  zeal  in  convo- 
cation and  secular  anger  in  parliament.  Theirs  was  not  a 
popular  attitude ;  but  perhaps  it  was  well  for  both  church 
and  state  that  bishops  owed  their  appointment,  not  to  election, 
but  to  bargaining  between  the  king  and  the  pope,  and  that  to 
the  holiness  of  their  orders  they  usually  added  the  qualifica- 
tion of  long  years  in  the  service  of  the  king.  Assuredly  it  was 
this  connexion,  their  regular  obedience  to  writs  of  summons 
to  parliaments,  which  helped  to  delay  the  final  conflict  of 
church  and  state,  and  moderated  its  fury  when  it  broke  out. 
Had  there  been  less  compromise  before  the  reformation, 
there  would  also  have  been  less  after  it,  and  bishops  would 
have  gone  the  way  they  went  in  really  protestant  countries. 
They  could  not,  however,  indefinitely  stop  the  secular 
inroad  by  parleying  at  the  gate,  charmed  they  never  so 
wisely ;  and  the  last  of  the  ecclesiastical  statesmen  hastened 
the  final  assault  by  overdoing  the  part.  Ecclesiastical 
liberties  and  jurisdiction  might  be  tolerable  so  long  as  they 
were  scattered  in  various  hands;  but  when  concentrated 
in  Wolsey's  to  an  unprecedented  extent,  they  evoked  an 
unprecedented  resentment.  His  extraordinary  legatine 
powers  made  him  supreme  over  both  the  provinces,  and 
constituted  a  national  papacy ;  ^    and  the  union  of  this 

^  The  authority  of  a  legatus  a  latere  overrode  that  of  a  legaius  natus  just 
as  a  special  envoy  supersedes  ad  hoc  a  resident  ambassador.  The  two 
archbishops  were  always  legati  nati,  but  Wolsey  secured  a  permanent 
position  as  legatus  a  latere^  and  his  exceptional  powers  enabled  him  to  give 


212  THE  EVOLUTION   OF  PARLIAMENT 

authority  with  his  control  of  the  state  was  a  precedent 
for  the  combination  under  Henry  VIII.  If  there  was  to  be 
national  autonomy  in  church  as  well  as  in  state,  and  if 
the  two  corps  of  ecclesiastical  and  secular  officers  were  t; 
be  united  under  a  single  command,  the  crown  was  a  mor' 
natural  head  than  a  cardinal ;  for  nationalism  was  inherent 
in  the  state,  but  exotic  in  the  church,  and  a  legate  of  the 
pope  could  only  play  at  independence  of  the  papacy. 

Wolsey  himself  clearly  foresaw  and  foretold  that  with  him 
would  fall  the  liberties  of  the  church.  Like  other  medieval 
hberties,  they  passed  by  the  grace  of  parliament  into  the 
hands  of  the  crown.  It  was  a  comprehensive  but  incomplete 
process  of  nationalization,  in  which  the  act  of  supremacy 
and  the  act  for  the  submission  of  the  clergy  were  merely 
details.  These  were  but  trifles  compared  with  the  revolution 
which  made  it  possible  to  call  the  laity  churchmen,  and  then 
to  term  them  "  religious  "  ^ — a  revolution  brought  to  its 
consummation  when  men  began  to  expect  the  appeals 
which  move  their  souls  to  fall,  not  from  the  lips  of  official 
clergy,  but  from  those  of  the  poet,  the  playwright,  the  philo- 
sopher, and  even  the  politician.  Fundamentally  the  move- 
ment was  one  to  equalize  churchmen  and  laymen  by  reducin;^ 
the  liberties  of  the  church;  and  extremists  would  have 
whittled  away  to  nothing  the  difference  between  the  two, 
pronouncing  every  man  a  priest  and  abolishing  the  "  Aaronic  " 
vestments,  benefit  of  clergy,  and  ecclesiastical  jurisdiction. 
The  clerical  estate  was  to  be  merged  in  the  national  state 
and  its  affiliations  with  the  international  papacy  to  disappear ' 
In  its  political  and  constitutional  aspects  the  reformatio 
was  no  more  than  a  stage  in  the  progress  of  nationalisi^ 
and  medieval  petitions  in  parliament  provided  precedent 
for  most  of  Henry's  acts.    The  payment  of  annates  and  th. 

to  the  convocations  of  the  two  provinces  the  appearance  of  a  nation.? 
council  of  the  Church.     Overriding  Archbishop  Warham's  summons  of  tL»> 
Canterbury  convocation  to  St.  Paul's,  he  summoned  both  it  and  the  Yo- 
convocation  to  meet  before  him  at  Westminster  in  June  1523  {Letters  ah 
Papers,  iii.  Nos.  3024,  3239). 

1  The  "  religious  "  in  the  middle  ages  were  the  members  of  the  religio 
orders;   no  parish  priest  could  be  religious,  and  the  change  of  "  religion  ^ 
in  Henry  VIII's  reign  was  primarily  the  dissolution  of  the  monasteries. 


PARLIAMENT  AND   THE  CHURCH  213 

pursuit  of  appeals  to  Rome  had  been  attacked  in  the  four- 
teenth century,  as  well  as  the  papal  appointment  of  prelates ; 
and  even  an  archbishop  had  asserted  the  right  of  the  crown 
o  prevent  the  translations  and  defy  the  excommunications 
f  the  pope.^  Nationalism  was,  in  short,  invading  the 
church  on  its  march  to  its  modern  omnipotence;  and  in 
the  latest  of  days  we  have  seen  international  bonds,  whether 
in  the  form  of  sociaHsm  or  finance,  pacifism  or  cathoHcism, 
shrivel  hke  wisps  of  straw  in  the  consuming  fire  of  national 
passion  and  prejudice. 

The  loss  of  the  church's  liberties  increased  those  of  the 

crown  and  threatened  those  of  the  people.     It  is  not,  indeed, 

that  the  role,  ascribed  by  Lord  Acton  to  the  catholic  church, 

of  protecting  the  liberties  of  the  individual  against  the  tyranny 

of  the  state  has  been  filled  with  much  success.    Countries 

in  which  the  catholic  church  retained  its  liberties  between 

the  Reformation  and  the  Revolution  were  not  conspicuous 

for  the  freedom  enjoyed  by  the  individual  or  by  the  nation ; 

and  liberty  was  not  more  at  home  in  France,  Italy,  and 

Spain    during   the    seventeenth    and    eighteenth    centuries 

"than  it  was  in  England,  Holland,  and  America.     For  it 

^was  not  with  other  people's  liberties,  or  with  liberty  in 

^general  that  the  church  was  concerned,  but  with  its  own; 

""it  interfered,  not  to  save  victims  from  the  state,  but  to 

claim  them  for  itself,  not  to  enforce  freedom,  but  to  establish 

jurisdiction.    Its  ideal  was  medieval  independence,  and  not 

modern  liberty.     Nevertheless,  the  concentration  of  medieval 

liberties  in  the  crown,  which  created  modern  sovereignty, 

was  a  menace  to  liberty  from  which  England,  Holland,  and 

\merica  were  saved,  not  by  the  reformation,  but  by  revolt 

against  their  monarchs.     The  great  rebellion  of  1642  sprang 

in  a  sense  from  the  Tudor  acts  of  supremacy. 

For  those  acts  of  1534  and  1559  united  two  incompatible 

Jorms  of  sovereignty — the  absolute  jurisdiction  of  the  pope, 

''instinct  with  Roman  tradition,  and  the  limited  jurisdiction 

of  the  king,  with  its  Teutonic  and  feudal  restrictions.     Care 

had,  indeed,  been  taken  in  drafting  the  acts  to  meet  the 

1  Rot.  Pari.,  iii.  304, 


214  THE  EVOLUTION  OF  PARLIAMENT  '^ 

consequent  danger;    and  the  crown,  as   supreme  head   or 
governor  of  the  church,  was  only  authorized  to  exercise  1 
such  jurisdiction  as  properly  belonged  to  the  ecclesiastical  1 
courts;    otherwise,  said  the  lord  chancellor,  Audley,  in  a^  * 
significant  conversation  with  Bishop  Gardiner,  **  you  prelates 
would  enter  in  and  order  the  laity  as  you  listed."  ^    Coke 
fought  a  long  battle  in  defence  of  Audley 's  interpretation; 
but  only  the  great  rebellion  brought  success  to  his  cause. : 
For  the  acts  of  supremacy  had  made  the  crown  the  keeper 
of  its  own  conscience,  the  judge  of  its  own  liberties,  the 
controller  of  its  own  powers.     In  the  middle  ages  the  courts 
christian  had  been  restrained  by  those  of  the  crown,  and 
those  of  the  crown  by  those  of  the  church.     But  was  the 
crown  to  restrain  itself?    were  prohibitions  of  the  king's 
bench  to  impede  the  high   commission?     was  praemunire 
to  limit  the    royal    supremacy  ?  ^     The    crown    could    be 
trusted  in  the  middle  ages  to  see  that  the  courts  christian 
did  not  overstep  the  mark;  but  would  it  be  equally  jealous 
of  their  liberties  when  they  exerted  a  royal   jurisdiction 
and  proclaimed  the  divine  right  of  kings?     The  court  of 
high  commission  answered  the  question,  and  Charles  I  and  % 
Archbishop  Laud  paid  with  their  heads  the  penalty. 

The  civil  war  of  the  seventeenth  century  was  thus  pre- 
pared by  the  least  constitutional  measures  of  Henry  VIII, 
for  the  act  of  supremacy  was  really  a  revolution.  That 
there  was  something  fundamentally  unconstitutional  in 
Henry's  government  has  been  widely  felt,  but  wrongly 
expressed  in  the  constitutional  terms  of  a  later  age.  Parlia- 
ment became  so  closely  identified  with  the  constitution  that 
nothing  done  by  parliament  was  regarded  as  unconstitutional, 
and  every  unconstitutional  course  was  interpreted  as  an 
infringement  of  parliamentary  liberties.  So  men  were  led 
to  express  their  conviction  of  Henry's  tyranny  by  attempt- 

1  Gardiner  to  Somerset,  October  14,  1347,  Foxe,  Acts  and  Monuments, 
vi.  43. 

2  "  How,"  asked  James  I,  "  can  a  king  grant  a  pycBmunire  against 
himself  ?  "  {Political  Works,  ed.  Mcllwain,  1918,  p.  334).  Bishop  Gardiner, 
in  the  letter  quoted  above,  expressed  a  similar  disbelief  in  the  possibility 
of  restraining  by  prcsmunire  a  minister  of  the  king. 


PARLIAMENT  AND   THE  CHURCH  215 

ing  to  prove  his  designs  upon  parliamentary  independence. 
But  the  least  constitutional  acts  of  Henry's  reign  were  acts 
of  parliament,  and  he  strained  the  constitution  by  expanding, 
and  not  by  restricting,  the  sphere  of  its  activity.  He  did 
not  minimize,  but  magnified  parliament.  Under  his  rule 
its  privileges  were  consolidated,  its  personnel  was  improved, 
its  constituency  enlarged,  its  political  weight  enhanced 
in  foreign  eyes,  its  authority  increased,  its  sessions  made 
more  frequent  and  prolonged.  He  did  not  invade  parlia- 
mentary liberties;  he  led  a  parliamentary  invasion  of  the 
liberties  of  the  church  and  of  feudal  franchise. 

Under  his  impulse  parliament  was  called  upon  to  deal 
with  clerical  privileges,  papal  jurisdiction,  and  even  with 
matters  of  faith;  and  the  chief  constitutional  demands 
of  the  Pilgrimage  of  Grace  were  that  the  church  of  England 
might  enjoy  the  liberties  granted  by  Magna  Carta  and  "  used 
until  six  or  seven  years  past,"  and  that  spiritual  matters 
should  be  dealt  with  by  convocation.  These  were  liberties 
denied  by  parliament,  and  not  to  parliament;  and  this 
parliamentary  invasion  was  unconstitutional  in  the  sense 
that  it  was  based  on  a  novel  theory  of  an  omnicompetent 
"  crown  in  parliament,"  and  on  a  repudiation  of  a  juris- 
diction, the  independence  of  which  had  been  acknowledged 
and  enjoyed  for  centuries.  The  English  clergy,  indeed,  made 
their  submission  in  both  their  provincial  convocations ;  but 
the  abandonment  of  the  catholic  position  by  two  provinces 
was  not,  and  could  hardly  be,  regarded  as  constitutional 
by  the  rest  of  the  catholic  church.  The  revolution  only  be- 
came constitutional  through  the  process  by  which  triumphant 
treason  ceases  to  be  treason,  that  is,  by  success,  and  by 
the  recognition  of  the  supremacy  of  the  crown  in  parlia- 
ment over  all  competing  jurisdictions.  The  constitutional 
aspect  of  the  Anglican  Reformation  can  only  be  summed 
up  in  the  dubious  maxim  quod  -fieri  non  debuit,  factum 
valet ;  and  nations  have  ever  since  paid  toll  for  a  national 
sovereignty  which  is  based  on  the  sixteenth-century  claim 
of  parts  of  mankind  to  independence  of  the  rest. 


CHAPTER  XI 

THE  GROWTH  OF  SOVEREIGNTY  IN  PARLIAMENT 

It  has  been  said  that  the  supreme  achievement  of  the 
Reformation  is  the  modern  state. ^  The  truth  that  hes  in 
an  epigram  often  bears  restatement  in  a  reversal  of  its  parts, 
and  it  might  be  as  true  to  say  that  the  Reformation  was  the 
supreme  achievement  of  the  modern  state.  Certainly  in 
England  it  was  largely  the  work  of  the  Tudor  monarchy, 
which  was  rather  a  cause  than  a  result  of  the  Reformation. 
There  is,  however,  a  fundamental  truth  in  this  connexion 
between  the  Reformation  and  the  modern  state,  and  it 
concerns  the  nature  of  sovereignty.  Without  the  Reforma- 
tion there  could  have  been  no  such  thing  as  modern 
sovereignty ;  for  the  sovereignty  of  every  medieval  monarch 
in  western  Christendom  was  limited  by  the  recognized  claim 
of  the  pope  to  hold  kings  responsible  for  certain  of  their  acts 
and  to  inflict  pains  and  penalties  for  the  infraction  of  certain 
rules  of  conduct.  They  were  not  exempt  from  citation  to 
Rome,  and  they  could  not  afford  to  assert  that  divine  right 
of  irresponsibility  with  which  protestantism  endowed  their 
successors. 

It  would,  however,  be  a  mistake  to  regard  this  achievement 
of  sovereignty  as  an  act  of  creation.  The  crown  in  parlia- 
ment is  legally  omnicompetent,  because  it  was  never  created, 
because  there  never  was  made  that  social  contract  to  which 
philosophers  in  the  pre-scientific  ages  of  history  were  wont 
to  ascribe  the  origin  of  the  state.  The  act  of  creation  involves 
the  relation  between  creature  and  creator,  and  the  purpose 
of  the  theories  of  contract  was  to  impose  the  limitations 

1  Figgis  in  Cambridge  Modern  History,  iii.  736, 
216 


GROWTH   OF   SOVEREIGNTY   IN   PAR^^  "^MENT     217 

involved  in  that  relation,  and  to  bind  sovereignty  down  to 
the  terms  and  conditions  that  pleased  its  imaginary  creator. 
Wherever  a  constitution  has  been  made,  and  power  has 
been  conferred  by  a  definite  act,  Hmitations  have  been 
imposed  by  its  makers.  But  no  one  made  the  English 
crown  or  the  English  parliament,  and  no  powers  have  been 
conferred  upon  them;  for  that  reason  they  are  unlimited. 
No  one  has  had  the  right  to  confer,  and  therefore  no  one  has 
had  the  right  to  limit  their  sovereignty.  It  grew,  and 
things  that  grow  have  a  power  divine  beyond  that  of  things 
that  are  made  with  hands. 

The  slow  evolution  of  sovereignty  in  England  precludes 
any  theory  of  its  special  creation  at  any  particular  period; 
and  the  process  reaches  back  beyond  the  middle  ages  and 
spans  the  whole  course  of  English  history.  If  it  is  an  error 
to  regard  sovereignty  as  the  creation  of  the  age  of  Luther 
and  Machiavelli,  it  is  a  greater  error  to  regard  the  English 
constitution  as  complete  in  the  reign  of  Edward  I.  In  spite  of 
the  growth  of  parliament  during  the  fourteenth  century  and 
of  the  Lancastrian  experiment,  it  is  the  imperfection  rather 
than  the  perfection  of  government  that  strikes  the  observer 
at  the  close  of  the  middle  ages.  The  burden  of  Fortescue's 
complaint  is  the  lack  of  governance  in  England,  and 
Machiavelli  attributed  the  political  ills  of  his  time  to  lack  of 
will.  He  was  thinking,  not  of  the  individual  will  which 
superabounded  in  the  over -mighty  subject,  but  of  will  in  the 

te.    The  "  Rolls  of  Parliaments  "  are  full  of  lamentations 

er  the  king's  failure  to  execute  justice ;  and  a  profounder 
udy  than  these  plaintiffs  gave  to  the  subject  suggests  that 

was  the  king's  power  rather  than  his  will  which  was  at 
piult.     Nor  was  the  lack  of  governance  a  novel  grievance  : 

der  the  "  greatest  of  the  Plantagenets  "  complaints  are 

^|BQade  in  parliament  of  livery  and  maintenance,  champerty 

f    ilj^nd  riots ;  and  petitioners  allege  that  no  truth  can  be  obtained 

,^f  juries,  so  corrupted  are  they  by  rich  men's  bribes.^    The 

*-  captains  and  ringleaders  of  anarchy  were,  no  doubt,  greater 

men  in  the  reign  of  Henry  VI  than  in  that  of  Edward  I,  but 

'1      *  Rot.  Pari.,  i.  96,  183,  201 ;  Maitland,  Memoranda,  pp.  109,  286-7,  S^S* 

4 


2i8  THE   EVOLUTION  OF  PARLIAMENT 

the  concentration  of  the  forces  of  disorder  in  fewer  hands 
did  not  necessarily  increase  the  extent  of  the  evil,  and  weak- 
ness of  government  was  endemic  throughout  the  middle 
ages. 

Nothing,  indeed,  could  be  wider  of  the  mark  than  the 
popular  identification  of  feudal  times  with  royal  despotism 
or  of  the  progress  of  constitutional  liberty  with  the  whittling 
away  of  sovereignty.  Freedom  without  sovereignty  is  the 
idle  dream  of  anarchists;  and  sovereignty  without  freedom 
is  the  aim  of  bureaucratic  despots.  Neither  is  safe  without 
the  other,  and  it  was  the  absence  of  national  sovereignty  that 
left  medieval  England  a  prey  to  feudal  disorder.  The 
government,  as  Maitland  has  remarked,  was  occupied  less 
in  governing  than  in  struggling  for  existence ;  and  the  impedi- 
ments that  hampered  its  action  were  not  merely  material 
forces,  but  the  ideas  of  liberty  and  law  which  were 
ingrained  in  medieval  man.  Some  were  due  to  intellectual 
immaturity.  When  the  law  confessed  its  inability  to  dis- 
criminate between  murder  and  homicide,  proclaimed  that 
"  the  thought  of  man  shall  not  be  tried,  for  the  devil  himself 
knoweth  not  the  thought  of  man,"  ^  and  only  distinguished 
crimes  of  violence  according  to  the  accidents  of  the  time  and 
place  of  their  committal,  there  was  little  hope  of  justice,  and 
inadequate  security  for  execution  so  long  as  the  individual 
was  entitled  to  defeat  the  law  by  "  standing  mute."  ^  To 
this  deep-seated  distrust  of  human  capacity  or  rectitude 
was  due  the  resort  to  judicial  methods  like  trial  by  fire  or 
water,  by  which  the  hope  of  justice  was  frankly  abandoned 
to  the  miraculous  interposition  of  superhuman  powers,  an 
attitude  of  mind  which  still  survives  in  the  belief  that 
victory  in  battle  is  a  judgement  of  God. 

This  disbelief  in  human  achievement,  natural  enough  in 
the  early  stages  of  political  evolution,  explains  the  medieval 
conception  of  law.  Nowadays  law  is  regarded  as  something 
which  man  has  made ;  then  man  could  not  make  law  at  all. 

1  Maitland,  Collected  Papers,  1.  304,  315,  453. 

2  Not  abolished  until  1 772 .  Cf .  L.  Vernon  Harcourt,  His  Grace  the  Steward 
and  Trial  by  Peers,  p.  228. 


GROWTH  OF   SOVEREIGNTY  IN   PARLIAMENT    219 

It  had  been  made  for  him,  directly  by  God  in  the  form  of 
divine  law,  or  indirectly  by  God  in  the  forms  of  the  law  of 
nature  or  the  law  of  universal  reason.  Really  this  law  was 
custom  sanctified  by  the  church;  but  whether  regarded  as 
custom  in  heathen  communities  or  as  the  direct  or  indirect 
expression  of  the  divine  will  in  Christian  states,  no  king  or 
parliament  could  make,  repeal,  or  amend  it.  They  might 
proclaim  or  apply  it,  but  they  could  not  create  it;  it  was 
immutable  and  eternal,  and  all  alike,  prince  and  people,  were 
subject  to  its  dictates.  These  laws,  however,  required  an 
interpreter,  especially  since  they  often  conflicted.*  Few! 
schools  of  political  thought  have  failed  to  find  justification 
in  the  laws  of  nature,  or  of  reason,  or  of  God — ^from  the 
absolutist  to  the  tyrannicide,  from  the  individualist  to 
the  communist ;  and  the  conflict  of  laws  demanded  a  supreme 
arbiter  in  the  interests  of  peace.  Sovereignty,  therefore, 
appears  in  a  judicial  guise  and  sits  in  a  court  of  law ;  and  the 
king  in  his  council  in  parliaments  interprets  the  law  before 
he  pretends  to  make  it.  Our  earliest  laws — ^apart  from 
customs  which  are  not  conscious  creations — ^are  judicial 
decisions.  Indeed,  most  formal  acts  in  the  early  middle 
ages  were  regarded  as  the  judgements  of  a  court :  even  a 
declaration  of  war  was  a  judicium  super  eum  ire}  and  from 
it  descends  the  right  of  the  high  court  of  parliament  to 
consultation  on  such  issues.  Treaties  of  peace  are  recorded 
on  the  rolls  of  that  court  as  late  as  1420. 

A  decision  in  court,  however,  makes  law,  and  legislation 
begins  under  judicial  forms.  But  the  ordinances  of  Edward 
I,  for  instance,  should  be  regarded  rather  as  general  instruc- 
tions to  judges  and  others  ip  their  administration  of  existing 
law  than  as  deliberate  and  conscious  efforts  to  alter  the  law. 
Magna  Carta  was  a  treaty  rather  than  an  act  of  legislation, 
and  with  its  corollaries,  the  Confirmatio  Cariarum,  and  the 
Articuli  super  C arias,  continued  to  be  regarded  as  funda- 
mental law,  infractions  of  which,  even  by  parliament  itself, 
were   ipso  facto   invalid.  ^    But    constitutional    and    social 

^  Vernon  Harcourt,  His  Grace  the  Steward  and  Trial  by  Peers,  p.  248. 
2  Rot.  Pari.,  i.  285. 


220  THE  EVOLUTION  OF  PARLIAMENT 

development  was  outgrowing  rigid  conceptions,  and  the  law 
which  satisfied  past  generations  had  to  be  supplemented : 
even  the  constitution  of  the  United  States  has  required 
amendment.  The  medieval  supplements  to  the  constitution 
of  the  world  took  the  form  of  positive  law,  that  is,  of  law 
imposed  by  human  authority.  But  this  law,  made  by  man, 
was  inferior  to  the  older  laws  of  God  and  nature  :  those 
were,  so  to  speak,  the  constitution,  these  the  provisional 
regulations  made  under  its  authority.  The  prince  was 
above  the  laws  he  made,  but  subject  to  those  of  God 
and  nature ;  ^  an  offence  against  the  latter  was  malum  in  se, 
an  offence  against  the  former  was  only  a  malum  prohibitum? 
It  was  from  these  immutable  laws  that  medieval  liberties 
were  derived  :  they  were  absolute  rights,  not  the  concessions 
of  human  authority.  Kings  and  parliaments  had  not  given 
them,  kings  and  parliaments  could  not  take  them  away. 
Louis  XIV  declared  that  even  he,  with  his  plenitude  of  royal 
power,  could  not  deprive  his  grandson  of  his  hereditary  right 
to  the  Spanish  throne.^  Hereditary  right  was  divine,  and 
the  monarchical  character  was  indelible  :  not  all  the  water 
in  the  rough,  rude  sea  could  wash  the  balm  off  an  anointed 
king.  So  thought  Richard  II,  Mary  Stuart,  and  Charles  I.  As 
with  the  regnum,  so  with  the  sacerdotium ;  and  not  until  1870 
did  the  English  parliament  admit  that  a  clerk  in  Anglican 
orders  could  divest  himself  of  the  indelible  character  of 
priesthood.^  The  peerage  was  not  to  be  outdone  by  priests 
or  kings;  in  the  course  of  time  it  established  for  itself  an 
indefeasible  privilege  which  kings  and  priests  have  lost, 
and  in  1894  three  eldest  sons  of  peers  attempted  in  vain  to 
evade  the  impending  doom  of  a  nobility  inseparably  blended 
with  blue  blood.^  Thus  is  man's  liberty  impeded  by  the 
barriers  he  has  sought  to  raise  in  its  defence. 

*  "  Positiva  lex  est  infra  principantem  sicut  lex  naturalis  est  supra  " 
(Marsiglio  of  Padua,  quoted  in  Maitland's  Gierke,  p.  176). 

2  Prothero,  Select  Documents,  1898,  p.  402 ;   Coke  placed  the  common 
law  almost  on  a  level  with  the  older  fundamental  laws. 

3  Torcy,  MSmoires,  ed.  1850,  pp.  710-11. 

*  33  and  34  Vict.  c.  91 ;  Anson,  Law  and  Custom  of  the  Constitution, 
1908,  II.  ii.  326-7. 

^  See  below,  pp.  274,  306. 


GROWTH  OF  SOVEREIGNTY  IN  PARLIAMENT    221 

These  were  the  Hberties  of  the  great,  but  those  of  the  humble 
were  based  on  the  same  foundation  of  imprescriptible  right. 
Private  property  was  by  some  medieval  thinkers  placed 
outside  the  sphere  of  public  power,^  not  indeed  on  the  ground 
that  it  is  inherited,  but  because  it  originates  in  the  labour  of 
the  individual,  and  was  thus  a  right  independent  of  the 
community.  Citizens  were  regarded  as  shareholders  who 
could  not  be  deprived  of  their  shares  by  a  vote  of  the  majority 
or  by  any  other  means  than  their  own  voluntary  concession. ^ 
Medieval  history,  says  Stubbs,  is  the  history  of  rights  and 
wrongs,  to  be  followed  by  a  modern  history  of  powers,  forces, 
dynasties.^  In  theory  every  one's  right  was  indestructible ; 
society  was,  in  fact,  static  and  not  dynamic.  There  was 
no  power  to  reform  a  right,  and  the  only  way  to  dispose 
of  it  was  to  prove  that  it  was  "usurped" — Hke  the 
supremacy  of  Rome.  In  practice,  of  course,  the  absence 
of  means  of  legal  redress  led  to  violent  measures  on  the  part 
of  those  who  felt  themselves  wronged  or  incommoded  by  the 
rights  of  others.  The  legal  employment  of  torture  was 
probably  due  to  the  same  process  of  thought;  even  the 
criminal  must  consent  to  plead  or  confess,  and  without  his 
individual  surrender  there  could  be  no  legal  verdict.  The 
weakness  of  the  state  was  the  parent  of  its  cruelty.  It  was 
hemmed  in  by  iron  laws  and  indestructible  rights;  it  could 
not  create  or  modify  the  conditions  of  its  existence,  and 
the  "  Rolls  "  of  medieval  English  parliaments  are  records 
of  their  conscious  infirmity. 

The  greatest  of  all  these  limitations  imposed  on  the  state 
were  those  imposed  by  the  church.  Indeed,  from  Hilde- 
brand  onwards  papalists  had  contended  that  the  state  had  no 
rights  or  powers  at  all  except  in  so  far  as  they  were  derived 
from,  and  controlled  and  guided  by,  the  church  :  papa  ipse 
varus  iniperator,  declared  the  canonists  of  the  twelfth  century, 
and  the  prince  only  wielded  the  sword  as  the  officer  of  the 
pope.     The  pope  was  the  judge,  the  king  the  executioner. 

1  John  of  Paris,  quoted  in  Maitland's  Gierke,  p.  180. 

2  Ibid.,  p.  167;  cf.  Collected  Papers,  ii.  318-19. 

3  Lectures  on  Medieval  and  Modern  History,  ed.  1887,  p.  239. 


222  THE  EVOLUTION   OF  PARLIAMENT 


1 


Spiritualis  judical  omnia  et  ipse  a  nemine  judicatur.^  The 
pope  should  elect  the  emperor,  and  the  English  clergy  their 
king. 2  The  king  was  the  minister  of  the  church,  and  was 
subject  to  its  law,  not  merely  the  divine  law,  but  the  canon 
law,  the  lex  positiva  imposed  by  the  pope.  This  was  universal 
law,  and  municipal  legislation  like  acts  of  parliament,  which 
conflicted  with  it,  was  ipso  facto  null  and  void.  The  original 
sin  of  the  Reformation  was  its  rejection  of  this  catholic  law; 
thence  sprang  all  its  schism,  its  heresy,  and  sacrilege.  Nor 
did  even  the  champions  of  the  regnum  against  the  sacerdotium 
claim  any  plenitude  of  legislative  power  for  the  emperor. 
He  and  d  fortiori  lesser  princes  were  limited  by  divine  and 
natural  law,  by  papal  jurisdiction,  and  even  by  the  will  of 
the  people,  from  whom  imperial  sovereignty  was  derived. 
An  obdurate  monarch  might  not  only  be  condemned  by  the 
pope,  but  killed  by  his  people,  provided  that  they  selected 
some  method  of  tyrannicide  countenanced  by  biblical 
precedents,  and  not  such  new-fangled  means  as  poison.^ 

The  political  theory  of  the  middle  ages,  indeed,  knows 
little  of  absolute  authority  except  that  vested  in  the  papacy  ; 
and  in  practice  the  forces  of  feudalism  left  little  room  for 
the  exercise  of  sovereignty.  The  depths,  to  which  the  empire 
sank,  submerged  the  cause  for  which  it  had  stood,  but  the  rise 
of  national  monarchy  rescued  the  world  from  the  impotence 
of  authority.  In  the  reign  of  Philip  IV  of  France,  Pierre 
Dubois  proclaimed  the  decadence  of  the  empire,  and,  arguing 
that  right  without  might  was  vanity,  claimed  for  kings  the 
emperor's  inheritance.'*  Later  in  the  fourteenth  century 
Marsiglio  of  Padua,  the  most  modern  and  original  of  all 
medieval  political  thinkers,  outlined  in  his  Defensor  Pads 
a  comprehensive  theory  of  the  sovereignty  of  the  state. 

The  church,  he  maintains,  is  a  state  [civic]  institution,  and  the  sacerdotium 
is  "  pars  et  officium  civitatis."     Sovereign  in  things  ecclesiastical  is  the 

1  Maitland's  Gierke,  pp.  107-12. 

2  Ibid.,  pp.  1 1 7-1 8 ;  William  of  Malmesbury  apud  Stubbs,  Select  Charters, 
ed.  1900,  p.  117:  "Corammajoripartecleri  Angliae,  adcujus  juspotissimum 
spectat  principem  eligere  simulque  ordinare." 

3  John  of  Salisbury,  quoted  in  Maitland's  Gierke,  p.  143;  Dunning, 
Political  Theories,  p.  187. 

*  Dunning,  ibid.,  p.  228. 


GROWTH  OF  SOVEREIGNTY  IN  PARLIAMENT    223 

*'  universitas  fidelium,"  which,  however,  coincides  with  the  "  universitas 
civium,"  and  in  this  respect,  as  in  all  other  matters,  is  represented  by 
the  principans  whom  it  has  instituted,  so  that  the  line  between  spiritual 
and  temporal  is  always  a  line  between  two  classes  of  affairs  and  never  a 
line  between  two  classes  of  persons. ^  The  state  [civic]  power  imposes  con- 
ditions for  admission  to  the  sacerdotium,  regulates  the  functions  of  the  priest- 
hood, fixes  the  number  of  churches  and  spiritual  offices.  It  authorizes 
ecclesiastical  foundations  and  corporations.  It  appoints  the  individual 
clergyman,  pays  him,  obliges  him  to  a  performance  of  duties,  removes  him, 
nay,  its  consent  is  necessary  to  every  ordination.  It  watches  over  the 
exercise  of  every  spiritual  office,  to  see  that  it  is  strictly  confined  to 
spiritual  affairs.  All  juHsdictio  and  potestas  coaUiva  are  exercised  imme- 
diately and  exclusively  by  the  wielder  of  temporal  power,  even  if  clerical 
persons  are  concerned,  or  matrimonial  causes,  dispensations,  legitimations, 
or  matters  of  heresy.  Interdicts,  excommunications,  canonizations, 
appointments  of  fasts  and  feasts  require  at  the  very  least  authorization 
by  the  state  [community] .  Only  on  the  ground  of  express  commission  from 
the  state  is  it  conceivable  that  the  churches  should  have  any  worldly  powers 
or  the  decretals  any  worldly  force.  Education  is  exclusively  the  state's 
afifair.  Appeals  and  complaints  to  the  state  [civic]  power  are  always  permis- 
sible. All  councils,  general  and  particular,  must  be  summoned  and  directed 
by  the  state.  Church  property  is  in  part  the  state's  property,  and  in  part 
it  is  res  nulliiis.  In  any  case  it  is  at  the  disposal  of  the  state,  which 
thereout  should  provide  what  is  necessary  for  the  support  of  the  clergy 
and  for  the  maintenance  of  worship,  and  should  collect  and  apply  the 
residue  for  the  relief  of  the  poor  and  other  public  purposes.  The  state 
therefore  may  freely  tax  it,  may  divert  the  tithes  to  itself,  may  give  and 
take  benefices  at  pleasure,  and  for  good  cause  may  secularize  and  sell 
them  "  quoniam  sua  sunt  et  in  ipsius  semper  potestate  de  jure."  Only 
what  has  come  from  private  foundations  should,  under  state  control, 
"  conservari,  custodiri,  et  distribui  secundum  donantis  vel  legantis 
intentionem."  • 

It  was  not  without  reason  that  Thomas  Cromwell  financed 
the  publication  of  an  English  edition  of  Marsiglio's  Defensor 
Pacts  in  1534,  or  that  his  friends  recommended  its  perusal  to 
Cardinal  Pole  and  the  monks  of  the  Charterhouse ;  ^  for 
Marsiglio  had  provided  Cromwell  and  some  of  his  successors 
with  the  best  part  of  their  programme. 

1  This  is  perhaps  the  crucial  distinction  between  the  medieval  and 
modern  points  of  view.  Medieval  papalists,  indeed,  agreed  with  Marsiglio 
to  some  extent,  and  claimed  predominance  of  the  spiritual  authority  over 
every  person  in  every  sphere,  on  the  ground  that  man's  soul  was  superior 
to  his  body.  But  in  practice  the  contest  between  state  and  church  led 
to  a  separation  between  the  persons  in  whom  the  spiritual  character 
predominated — i.  e.  the  clergy — and  the  laity,  the  former  being  primarily 
subject  to  the  church  and  the  latter  to  the  state. 

2  This  is  Maitland's  translation  of  Gierke's  summary  of  Marsiglio's  views ; 
he  gives  references  for  each  sentence,  pp.  191-2 ;  but  "  civic  "  would 
perhaps  be  a  better  translation  than  "  state  "  as  an  adjective,  and 
"  community  "  as  a  substantive. 

'  Letters  and  Papers  of  Henry  VIII,  vii.  423,  viii.  1156,  ix.  523.  Nor 
is  it  surprising  that  one  of  the  monks  should  have  burnt  the  volume  lent 
him  for  his  edification. 


224  THE  EVOLUTION   OF  PARLIAMENT 

He  was  a  dreamer  of  dreams.  The  lawyers  and  statesmen 
of  his  time  were  hard  pressed  to  secure  a  foothold  or  two  in 
Marsiglio's  promised  land;  and  the  boldest  of  legal  fictions 
and  the  hardiest  of  assumptions  had  to  be  made  by  the 
principans  to  extend  that  field  of  positive  law  of  which  he 
was  master,  at  the  expense  of  that  field  of  natural  law  to 
which  he  was  subject.  The  secular  prince  borrowed  most 
of  his  maxims  from  the  law  of  the  church,  a  sphere  in  which 
the  pope's  claims  to  divine  authority  had  enabled  him  to 
exalt  his  lex  positiva  above  the  lex  naturalis  ;  for  the  pope 
was,  so  to  speak,  the  legatus  a  latere  of  God,  while  nature  and 
reason  were  merely  legati  nati  whose  authority  was  over- 
ridden by  special  commission.  From  the  canon  law  was 
taken  the  phrase  ex  certa  scientia,  whereby  the  statute  or 
ordinance  disposed  of  the  defect  arising  in  natural  law  from 
the  absence  of  "  just  cause  "  for  thq  invasion  of  private 
rights;  from  it,  too,  came  the  lege  non  obstante  clauses, 
which  calmly  assumed  the  plenitude  of  the  sovereign's  power 
over  all  other  laws.^  Richard  II,  however,  borrowed  whole- 
sale ;  he  not  only  claimed  to  be  "  entire  emperor  "  in  England, 
but  appropriated  the  contention  of  Boniface  VIII  that  he  had 
omnia  jura  in  scrinio  pectoris  sui ;  ^  and  in  many  other 
respects  he  attempted  to  anticipate  the  new  monarchy. 
But  the  time  was  not  ripe,  and  Richard  himself  was  not 
the  man  to  wield  the  sceptre  of  a  saviour  of  society.  The 
Lancastrian  experiment  and  the  Wars  of  the  Roses  were 
still  required  to  convince  the  English  people  that  sovereignty 
was  a  necessary  supplement  to  liberty,  and  the  Reception, 
the  Renaissance,  and  the  Reformation  were  needed  to 
complete  the  rout  of  feudalism  and  fortify  the  monarchy. 

The  reception  of  the  Roman  law  by  almost  all  the 
kingdoms  of  western  Europe  was  one  of  the  great  movements 
which  marked  the  close  of  the  middle  ages.     It  completed 

1  Maitland's  Gierke,  p.  185.  For  an  early  use  of  non  obstante  in  England 
see  Rot.  Pari.,  ii.  167. 

2  Maitland's  Gierke,  p,  176;  of.  Letters  and  Papers  of  Henry  VIII, 
iv.  p.  1839 ;  Rot.  Pari.,  iii.  343.  Richard  was  accused  of  having  said  "  quod 
leges  suae  erant  in  ore  suo  et  aliquotiens  in  pectore  suo ;  et  quod  ipse 
solus  posset  mutare  et  condere  leges  regni  sui  "  {ibid.,  iii.  419)- 


GROWTH   OF  SOVEREIGNTY   IN  PARLIAMENT    225 

the  translatio  imperii  from  the  moribund  Holy  Roman 
emperor  to  the  lusty  national  king,  who  appropriated  the 
legal  effects  of  the  deceased  world-sovereign.  Technically 
the  Roman  law  was  never  "  received  "  in  England,  and 
the  resistance  of  homespun  English  law  is  a  momentous 
chapter  of  English  legal  history.^  But  English  law  was  only 
successful  in  its  resistance  because  in  the  earlier  stages  of 
its  existence  it  had  been  inoculated  by  Henry  H  and  the 
curia  regis,  as  well  as  through  the  canon  law,  with  some  of 
the  principles  of  the  rival  system,  and  was  therefore  the 
better  prepared  to  withstand  the  legal  epidemic  of  the 
sixteenth  century.  Even  so  the  struggle  was  long  and 
arduous,  and  did  not  end  till  the  revolution  of  1688  expelled 
the  Stuarts  and  gave  the  victory  over  the  civilians  to  the 
common  lawyers.  In  the  interval  between  the  premature 
efforts  of  Richard  H  and  the  fall  of  his  followers,  the  Stuarts, 
maxims  of  Roman  civil  law  played  a  great  part  in  English 
history,  a  part  which,  though  dangerous  to  self-government, 
was  essential  to  the  establishment  of  the  sovereignty  of  the 
state.  "  If  we  should  do  nothing  but  as  the  common  law 
will,"  wrote  the  president  of  the  Council  of  Wales  with  respect 
to  Welsh  disorders,  "  these  things  so  far  out  of  order  will 
never  be  redressed  " ;  ^  and  the  prerogative  courts  and  councils 
of  the  Tudors  found  in  the  Roman  law  indispensable  aids 
to  the  suppression  of  local  anarchy.  Tudor  officials  were 
nearly  all  trained  in  the  civil  laws,  and  while  the  study  of 
canon  law  was  forbidden  by  Henry  VIII,  attempts  were 
made  to  found  a  college  of  civil  law  at  Cambridge,  and 
chairs  of  civil  law  were  endowed  at  both  universities.  Civil 
law  was  an  apt  weapon  against  both  the  canon  and  common 
law,  and  "  imperial  "  became  one  of  the  favourite  adjectives 
of  the  crown. 

While  the  invasion  of  Roman  law  released  sovereignty 
from  the  trammels  of  common  law,  the  Renaissance  tended 
to  relax  the  restraints  of  morality;  and  Machiavelli,  the 

1  See  Maitland,  English  Law  and  the  Renaissance,  1901, 

2  Rowland  Lee  to  Cromwell,  July  18,  1538;  the  letter  is  abbreviated 
in  Letters  and  Papers,  XIII.  i.  141 1 ;  cf.  Skeel,  Council  of  Wales,  p.  68. 

Q 


226  THE  EVOLUTION  OF  PARLIAMENT 

political  philosopher  of  the  Renaissance,  has  been  acclaimed 
as  one  of  the  fathers  of  the  modern  state.  His  offence  was 
not  so  much  that  he  invented  political  immorality,  as  that  he 
laid  bare  the  secrets  of  princes,  and  treated  politics  as  a  science 
and  an  art  with  its  own  principles  and  technique  which  were, 
like  those  of  surgery  or  navigation,  independent  of  morals. 
The  state  was  the  only  available  instrument  for  the  work  of 
political  reformation,  and  it  could  only  achieve  that  work 
by  being  liberated  from  the  conventions  of  medieval  thought 
which  had  left  society  bankrupt  at  the  close  of  the  fifteenth 
century.  Machiavelli's  contribution  to  political  sovereignty 
was  his  assertion  of  freedom  of  will  for  the  state. 

Luther's  was  his  assertion  of  its  freedom  from  the  papacy,^ 
and  the  Reformation  broke  one  of  the  bonds  which  fettered 
the  sovereignty  of  kings;  it  rendered  them  irresponsible 
except  to  God.  While  Machiavelli,  like  Hobbes,  contemplated 
the  possibility  of  a  sovereign  republic,  Luther  tied  his  cause 
to  the  chariot  wheels  of  German  territorial  princes,  and  his 
political  theory  evoked  many  echoes  in  the  England  of  the 
Tudors.  The  jurisdiction  of  the  pope  was  abolished  as 
"  usurped,"  and  canon  law  was  subjected  to  royal  veto. 
The  king  was  thus  lege  solutus  so  far  as  the  greater  portion 
of  medieval  law  was  concerned ;  and  of  the  law  that  remained 
he  was  the  final  arbiter.  From  Roman  civilians  he  learnf 
that  quod  principi  placuit  legis  habet  vigorem  ;  and  even  the 
common  law  of  England  could  now  be  made  and  unmade 
by  the  crown  in  parliament,  and  interpreted  by  the  king's 
own  courts.  The  crown  in  parliament  was  emancipated 
from  the  control  of  fundamental  law  and  from  the 
medieval  liberties  which  were  derived  therefrom.  The 
conflict  of  independent  legal  systems  was  at  an  end;  they 
were  all  fused  in  national  law  and  subjected  to  a  common 
sovereignty.  There  was  only  one  divine  right,  and  that  was 
the  right  of  kings;  all  the  rest  were  ''usurped."  The  king 
was  the  supreme  head  of  one  body. 

The  medieval  distinctions  between  churchmen  and  laymen 
were  swept  away  or  reduced  to  insignificance,  and  laymen 

^  He  may  also  have  helped  by  his  denial  of  free  will  to  the  individual. 


GROWTH  OF  SOVEREIGNTY  IN  PARLIAMENT    227 

in  time  were  even  called  churchmen.  Ecclesiastics  were 
required  or  encouraged  to  assimilate  the  habits  and 
customs  of  their  flocks,  to  discard  their  clerical  vestments 
and  assume  the  bonds  of  matrimony.  The  concentration 
camps  of  monasticism  were  broken  up,  and  their  inmates 
dispersed  among  the  civil  population.  Every  form  of  loyalty 
except  allegiance  to  the  national  king  was  discouraged ;  and 
the  characteristic  hostility  of  the  Roman  law  to  every 
association  that  weakened  the  direct  connexion  between 
the  state  and  the  individual  was  reflected  in  the 
attitude  of  Tudor  statesmen  to  corporations.^  Ecclesiastical 
colleges  and  chantries  felt  the  brunt  of  this  animosity,  but 
secular  guilds  and  municipal  corporations  found  their 
liberties  restrained  by  acts  of  parliament,  and  their  freedom 
of  internecine  legislation  controlled  by  chancery.  Medieval 
rights  gave  way  to  modem  law,  and  all  municipal  authority 
was  regarded  as  a  concession  from  a  sovereign  parliament 
and  not  as  a  derivation  from  imprescriptible  right.  The 
passion  for  national  independence  left  little  room  for  the 
independence  of  church,  class,  or  corporation;  the  many 
estates  were  fused  in  the  single  state,  and  their  liberties 
were  confiscated  in  the  interests  of  national  sovereignty. 
The  revolts  of  the  Tudor  period  are  nearly  all  local,  sectional, 
or  ecclesiastical  protests  against  this  national  consolidation. 
The  Cornishmen  in  1497  resent  taxes  levied  for  the  defence 
of  the  Scottish  borders  :  the  Pilgrims  of  Grace  complain 
of  the  neglect  of  the  house  of  lords  to  begin  each  day's 
proceedings  with  the  time-honoured  recital  of  the  first 
clause  of  Magna  Carta,  and  of  the  transgression  by  statute 
of  the  liberties  of  the  church ;  ^  and  the  northern  earls  ie 
1569  were  fighting  a  last  fight  for  feudal  freedom  from  the 
state. 

This  monopoly  of  sovereignty  was  something  new  in 
English  and  in  other  history.  There  was  little  of  it  in  the 
middle  ages,  but  only  suzerainty  of  many  sorts.     Every  lord 

*  See  above,  pp.  174-6. 

'  Letters  and  Papers  of  Henry  VIII,  xi.  1182  (2).  xii.  pt.  i.  401 ;  Dodds, 
Pilgrimage  of  Grace,  i.  360. 


228  THE  EVOLUTION  OF  PARLIAMENT 

was ''  sovereign  "  to  his  man,  and  every  master  to  his  servant. 
Even  an  archbishop  was  ''sovereign"  to  his  suffragans,  and  a 
husband  to  his  wife.^  To  kill  one's  lord  was  treason,  petty 
it  is  true,  but  none  the  less  a  worse  offence  than  murder. 
What  real  sovereignty  there  was  had  been  discovered  by  the 
pope  when  he  stepped  into  the  shoes  of  the  Roman  Imperator, 
and  he  alone  was  sovereign  in  the  modern  Austinian  sense. 
For  the  barbarians  had  not  only  shattered  Roman  empire, 
but  dissipated  sovereignty,  and  it  easily  slid  down  the  slippery 
slopes  of  the  feudal  pyramid.  Much  of  it  passed,  for  instance, 
from  the  king  of  the  French  to  the  Norman  duke,  from  the 
duke  to  the  Angevin  count,  and  from  him  to  the  count  of 
Maine,  before  it  sank  into  the  minds  of  the  people  of  Le  Mans ; 
and  a  sovereignty  which  had  to  satisfy  so  many  mouths  was 
a  diluted  form  of  political  authority.  The  medieval  preroga- 
iiva  regis  was  a  purely  feudal  conception ;  ^  the  king  was 
regarded  as  simply  paramount  landlord,  and  his  prerogative 
only  affected  his  subjects  qua  tenants. 

But  the  royal  prerogative  of  the  Tudors  affected  their 
relations  with  every  subject  irrespective  of  his  tenure ;  the 
** sovereignty"  of  masters  over  men,  and  with  it  petty  treason, 
almost  disappeared  in  one  conception  of  sovereignty  and  a 
single  notion  of  high  treason.  Even  the  sovereignty  of  the 
pope  had  had  its  rivals ;  that  of  the  Tudors  had  none.  The 
subject's  relation  to  the  crown  became  his  political  all  in  all. 
All  the  liberties  and  jurisdictions  which  had  intervened 
between  the  subject  and  the  national  sovereign  were  abolished, 
and  Englishmen  were  brought  into  direct  and  constant 
contact  with  the  state.  The  relationship,  therefore,  assumed 
an  overwhelming  importance,  and  created  a  problem  of 
absorbing  magnitude.    Sovereignty  might  be  tolerable  while 

^  12  Henry  VII,  c.  7  :  "  their  master  or  their  immediate  sovereign  " ; 
Rot.  Pari.,  ii.  244-5  :  "  et  le  dit  evesque  .  .  .  eit  receu  mandement  de 
.  .  .  son  soveregn  erchevesque  "  ;  Paston  Letters,  i.  78  :  "  to  my  soveregn, 
John  Paston  " ;  Rot.  Pari.,  4  Henry  VIII,  prefixed  to  Lords'  Journals,  vol. 
i.  p.  xxix  :  ''  that  every  lord  espiritual  and  temporal  and  every  sovereign 
of  monastery  .  .  .  that  every  such  lord,  sovereign,  master,  mistress,  or 
other  householder;"  Taming  of  the  Shrew,  Act  v.  Sc.  ii.  147:  "Thy 
husband  is  .  .   .  thy  sovereign." 

*  On  the  so-called  statute  PrcerogcUiva  Regis,  see  Maitland,  Collected 
Papers,  ii.  182-9. 


GROWTH  OF  SOVEREIGNTY  IN  PARLIAMENT    229 

it  was  distributed  in  many  hands ;  it  took  on  a  forbidding 
aspect  when  gathered  into  one.  Contact  often  means 
conflict,  and  popular  hostihty  is  only  aroused  by  the 
jurisdiction  with  which  people  are  brought  into  touch. 
Hence  the  popular  risings  and  resentments  of  the  middle  ages 
were  directed  against  ecclesiastical  and  feudal  jurisdictions, 
because  those  were  the  authorities  under  which  most  men 
suffered.  There  were  no  really  popular  rebellions  against  the 
crown ;  the  movements  against  the  crown  were  baronial  or 
ecclesiastical,  because  it  was  the  crown  which  threatened  the 
liberties  of  the  magnates  and  the  church. 

But  now  the  crown  has  absorbed  and  wields  these  juris- 
dictions ;  the  buffers  are  removed,  and  a  king  who  demands 
the  undivided  loyalty  of  his  subjects  runs  the  risk  of 
their  undivided  disaffection.  The  crown  has  enveloped 
church  and  state  alike  in  the  ample  shield  of  its  supremacy, 
and  that  shield  must  bear  the  brunt  of  every  attack  on 
the  powers  the  crown  has  absorbed.  Every  movement  for 
liberty  becomes  an  attack  on  the  crown  :  the  strife  is  no 
longer  between  barons  or  bishops  and  the  king,  but  between 
the  king  and  his  parliament  or  his  people.  The  crown  had 
become  the  universal  agent  and  everybody's  proxy;  and 
its  monopoly  of  powers  involved  a  monopoly  of  responsibility. 
Medieval  sovereignty,  dispersed  in  local  franchises  and  in 
the  privileges  of  orders  and  estates,  and  bound  down  by 
fundamental  laws,  might  be  irresponsible;  but  modern 
sovereignty,  triumphant  over  canon  and  over  common  law, 
and  over  all  excluding  hberties,  must  be  made  responsible 
or  must  be  dismembered.  It  was  well  that  Leviathan  should 
have  a  giant's  strength;  it  was  ill  that  he  should  use  it 
in  a  giant's  spirit.  The  problem  of  the  seventeenth  and 
eighteenth  centuries  was  whether  to  dismember  or  harness 
Leviathan,  and  how  to  effect  the  process.  The  Americans 
preferred  dismemberment  of  sovereignty  and  the  separation 
of  powers.  England  decided  for  unity  of  powers  combined 
with  responsibility  for  their  exercise ;  it  hitched  a  democratic 
wagon  to  le  roi  soleil. 

The  explanation  of  this  choice  is  found  in  the  history  of 


230  THE  EVOLUTION  OF  PARLIAMENT 

the  English  pariiament.  It  inherited,  but  did  not  divide  the 
sovereignty  of  the  crown;  or  rather,  there  was  no  demise 
of  powers  at  all,  but  a  rearrangement  of  predominance  in 
the  partnership.  The  crown  had  never  been  sovereign  by 
itself,  for  before  the  days  of  parliament  there  was  no  real 
sovereignty  at  all :  sovereignty  was  only  achieved  by 
the  energy  of  the  crown  in  pariiament,  and  the  fruits  of 
conquest  were  enjoyed  in  common.  It  was  a  happy  thing 
that  no  English  king  ever  delegated  powers  to  an 
English  parliament,  but  preserved  them  entire,  so  that  in 
due  time  the  people  should  enjoy  them.  For  delegation 
would  have  meant  division,  and  division  would  have  meant 
subtraction.  But  since  there  was  no  delegation  from  the 
crown,  there  was  no  circumscription  of  the  powers  of  parlia- 
ment. It  was  summoned  to  do  whatever  might  be  proposed. 
No  doubt,  in  reality,  and  also  in  men's  ideas  of  w^hat 
was  right,  the  competence  of  the  crown  in  parliament 
was  severely  restricted;  and  possibly  the  obvious  narrowness' 
of  those  limitations  dispensed  with  the  need  of  definition. 
For  we  only  limit  powers  which  may  conceivably  be  used  or 
abused;  it  is  but  lately  that  men  have  begun  to  talk  of 
sovereignty  or  property  in  the  air,  and  we  are  not  yet  reduced 
to  dealing  by  statute  with  property  in  sunshine  or  in  rain. 
If  Edward  I  had  had  James  I's  notions  of  sovereignty,  he 
would  have  been  more  chary  of  summoning  parliaments 
to  share  it  with  him;  and  if  barons  and  churchmen  had 
dreamt  of  the  lengths  to  which  the  crown  in  parliament 
would  go  under  the  Tudors  in  dealing  with  their  liberties, 
they  would  early  have  insisted  on  a  written  and  rigid  con- 
stitution. They  did,  in  fact,  try  to  stereotype  Magna  Carta, 
fortunately  without  success.  But,  on  the  whole,  the  poverty 
of  pariiamentary  force  enabled  it  to  avoid  definitions  of  its 
authority  until  the  Tudors  had  discovered  in  parliament 
the  apt  est  instrument  for  their  designs.  It  was  then  too 
late  for  the  threatened  liberties  to  protest,  for  the  crown 
in  parliament  was  the  interpreter  of  the  extent  of  the  powers 
it  exercised;  it  was  judge,  jury,  and  criminal  all  combined, 
so  far  as  its  offences  against  fundamental  law  and  medieval 


GROWTH  OF  SOVEREIGNTY  IN   PARLIAMENT    231 

liberties  were  concerned,  and  the  political  efficiency  of 
combining  a  supreme  court  with  a  legislature  has  seldom 
been  illustrated  with  more  striking  effect. 

Nor  was  there  ever  a  more  signal  proof  of  political  genius 
or  more  fortunate  coincidence  of  interests  than  that  which 
led  to  the  co-operation  of  crown  and  parliament  under 
Henry  VIII.  The  two  were  knit  together  in  terms  of  the 
closest  alliance  in  their  conflict  with  rival  jurisdictions,  and 
each  found  its  advantage  in  exalting,  instead  of  in  fighting, 
the  other.  The  way  in  which  parliament  magnified  Henry 
VIII  is  written  in  the  statutes  of  the  latter  half  of  his  reign ; 
and  the  king  repaid  the  compliment.  *'  We,"  he  declared 
to  the  commons,  **  be  informed  by  our  judges  that  we 
at  no  time  stand  so  highly  in  our  estate  royal  as  in  the 
time  of  parliament,  wherein  we  as  head  and  you  as  members 
are  conjoined  and  knit  together  in  one  body  politic,  so 
as  whatsoever  offence  or  injury  during  that  time  is  offered 
to  the  meanest  member  of  the  house  is  to  be  judged  as  done 
against  our  person  and  the  whole  court  of  parliament."  ^ 
It  was  in  his  reign  that  the  Speaker's  claim  for  personal 
freedom  of  speech  was  expanded  into  a  claim  on  behalf  of 
every  member,  ^  and  there  is  no  instance  in  which  Henry 
himself  violated  those  privileges,  respect  for  which  he  enforced 
upon  others.  Parliamentary  sanction  was  sought  to  an 
unprecedented  extent  for  the  acts  of  the  crown. 

It  was  not  the  debasement,  but  the  exaltation  of  parHa- 
ment  that  impressed  the  witnesses  of  the  process;  and 
malcontents  sneered  at  that  "  thirteenth  article  of  our 
creed,  added  of  late,"  that  parHament  cannot  err,^  a 
doctrine  which  even  royalist  judges  admitted  under 
Charles  I.*  Parliament,  says  Sir  Thomas  Smith,  "  repre- 
senteth  and  hath  the  power  of  the  whole  realm  .  .  .  and  the 


^  Letters  and  Papers  of  Henry  VIII,  vol.  xvii.  pp.  iv,  107;  Holinshed, 
Chronicles,  iii.  956. 

2  Lords'   Journals,   i.  167;  Hakewill,    Modus    Tenendi   Pari.,   p.    213; 
Manning,  Speakers,  p.  192. 

3  Letters  and  Papers  of  Henry  VIII,  vol.  xxi.  pp.  ii.  345. 

*  Justice  Berkeley  on  ship-money,  Gardiner,  Select  Documents,  ed.  1889, 
P-54- 


232  THE  EVOLUTION  OF  PARLIAMENT 

consent  of  parliament  is  taken  to  be  every  man's  consent. 
L'Etat,  c'est  moi  was  the  boast  which  Voltaire  put  into  the 
mouth  of  Louis  XIV  :  in  England  the  state  was  not  the  I 
crown,  but  a  fusion  of  all  the  estates,  and  every  free  English- 
man could  share  in  the  glory  reserved  in  France  for  the  king. 
Sovereignty  was  vested,  not  in  a  single  person,  but  in  a  com- 
posite and  representative  body,  which  expressed  the  national 
will  and  mind,  and  not  merely  that  of  a  monarch.  It  was 
this  national  will  that  gave  the  Tudors  their  strength;  it 
was  a  new  will  to  be  free  from  the  old  restraints,  and  it  sprang 
from  a  disappearance  of  the  medieval  distrust  in  human 
rectitude  and  capacity,  and  from  a  growth  in  conscious 
control  over  national  destinies.  He  knew  not,  Burghley 
was  wont  to  say,  what  an  act  of  parliament  could  not 
do  in  England ;  ^  and  the  long  list  which  Sir  Thomas  Smith 
gives  of  the  things  which  parliament  could  do  and  did, 
trespasses  far  and  wide  on  the  old  forbidden  domains  of 
immutable  law,  and  sets  no  bounds  to  the  sphere  of  national 
legislation. 

Not  that  the  old  landmarks  of  thought  were  suddenly 
swept  away  or  submerged  in  one  or  two  generations.  They 
still  survive  in  conservative  affections,  and  iconoclasts  them- 
selves use  the  arms  of  the  past  to  break  with  the  past. 
Richard  of  York  claimed  in  1460  that  hereditary  right 
was  part  of  the  law  of  nature.^  Henry  VIII  alleged  the 
will  of  God  and  the  law  of  nature  as  the  two  foundations 
of  royal  authority;  and  chief  justice  Coke  tried  to  place 
man-made  common  law  on  a  pedestal  above  the  reach 
of  king  or  pariiament.  That  there  was  a  law  of  nature, 
a  law  of  nations,  and  a  law  of  reason  outside  the  scope  of 
statute  was  a  conception  which  lingered  long  in  the  judicial 
mind.  Lord  Mansfield  laid  it  down  that  "  the  act  of  parlia- 
ment 7  Anne  c.  12  did  not  intend  to  alter,  nor  can  alter,  the 
law  of  nations."  In  the  seventeenth  and  eighteenth  centuries 
the  courts  often  declared  statutes  null  if  against  reason  or 

^  De  Republica  Anglorum,  ed.  Alston,  p.  49. 
2  Mcllwain,  Political  Works  of  James  I,  p.  329. 
^  Fortescue,  p.  207. 


GROWTH  OF   SOVEREIGNTY  IN  PARLIAMENT    233 

fundamental  law ;  ^  and  to-day,  after  all  the  labours  of 
Austin,  the  church  declines  to  recognize  the  ecclesiastical 
jurisdiction  of  the  judicial  committee  of  the  privy  council, 
which  is  based  on  parliamentary  statute.  It  holds  that  the 
law  of  the  church,  which  is  thereby  overridden,  rests  on  a 
higher  authority  than  any  positive  law  of  the  state.  This 
ground  was  common  to  all  parties  to  the  constitutional 
struggles  of  the  seventeenth  century — ^to  crown  and  commons, 
peers  and  judges.  All  claimed  to  hold  what  they  held  by 
right.  But  they  also  held  this  in  common,  that  they  could 
override  the  rights  of  others  by  statute.  The  commons 
disposed  of  endless  rights  by  statute  and  ordinance  during 
the  Long  parliament;  and  crown,  church,  and  lords  em- 
ployed statutes  for  similar  ends  at  the  Restoration.  Par- 
liament, which  is  not  regarded  by  high  churchmen  as  a 
sufficient  authority  for  the  jurisdiction  of  the  privy  council, 
was  good  enough  for  a  Test  act  and  a  Clarendon  code. 
Indefeasible  right  is,  in  fact,  the  right  of  oneself;  and 
fundamental  law  is  the  law  one  invokes  to  restrain  legislation 
by  other  people.  As  a  minority  dwindles,  its  attachment  to 
fundamentals  develops ;  but  the  more  completely  parliament 
represents  the  nation,  and  government  grows  responsible,  the 
less  does  the  nation  demand  restrictions  on  sovereign  power. 
Fundamental  laws  and  written  constitutions  are,  in  the 
main,  expressions  of  the  distrust  which  a  people  feels  of  its 
government  or  a  government  feels  of  its  people. 

So  sovereignty  has  grown  with  popular  representation 
and  popular  education. ^  The  revolution  of  1688  weakened 
the  king,  but  strengthened  the  crown.  The  reform  acts 
of  the  nineteenth  and  twentieth  centuries  enfranchised 
masses  who  used  their  votes  to  demand  more  and  more 
governmental  activity;  and  a  cabinet  has  at  its  disposal 
to-day  a  wealth  of  resource  and  a  profusion  of  powers  beyond 

1  Mcllwain,  The  High  Court  of  Parliament,  pp.  271,  2S1-3,  329. 

2  So  modem  is  our  "  sovereignty  "  that  it  is  not  even  mentioned  in 
Cowell's  Law  Dictionary,  and  so  different  is  its  modem  from  its  medieval 
meaning  that  we  had  early  in  the  nineteenth  century  to  adopt  a  variation 
of  the  word  and  use  "  suzerainty  "  to  express  what  medieval  writers 
meant  by  "  sovereignty." 


234  THE  EVOLUTION  OF  PARLIAMENT 

the  wildest  dreams  of  a  Tudor  or  Stuart  despot.  The  royal 
prerogative,  so  long  feared  and  disliked,  grows  by  leaps  and 
bounds,  for  the  advice  of  ministers  has  become  the  act  of 
the  crown,  and  ministers  themselves  the  agents  of  the  people. 
"  The  progress  of  constitutional  liberty  in  this  country," 
it  was  remarked  long  ago,  "  is  shown  not  so  much  by  the 
actual  restraints  that  have  been  imposed  upon  the  powers 
of  the  crown,  as  by  the  efforts  which  have  been  made  to 
render  the  king's  advisers  responsible  to  parliament."  ^ 

Thus  did  England  deal  with  the  problem  created  by 
the  monopoly  of  sovereignty  and  the  decay  of  medieval 
restraints.  Three  alternatives  were  conceivable  as  means 
for  preventing  a  monstrous  tyranny.  Sovereignty  might 
be  limited,  it  might  be  divided,  or  it  might  be  kept  intact 
but  entrusted  to  ministers  responsible  to  the  nation  for 
every  detail  of  its  exercise.  Each  of  these  expedients  was 
tried  in  turn  by  England  during  the  seventeenth  century  : 
experience  taught  it  to  prefer  the  third.  Influenced  perhaps 
by  the  short-lived  experiments  of  the  Commonwealth  and 
Protectorate,  but  more  by  the  exigencies  of  their  own 
situation,  and  misled  by  the  superficial  appearance  of  the 
British  constitution  and  by  deductions  therefrom  by  French 
philosophers,  the  Americans  chose  the  second,  and  constructed 
a  constitution  on  the  basis  of  a  divided  sovereignty  and  on 
the  dogma  of  the  separation  of  powers.  They  believed  that 
undivided  sovereignty  meant  unbridled  tyranny ;  and  their 
descendants  still  maintain  that  the  sovereignty  of  parliament 
is  a  doctrine  inapplicable  to  the  United  States,  and  therefore 
to  any  free  imperial  community.  The  fiction  that  there  is, 
or  ever  was  a  separation  of  powers  in  the  English  constitution, 
and  the  assumption  that  in  that  separation  lies  the  sole 
guarantee  for  effective  liberty,  are  based  upon  historical  and 
other  arguments  which  require  further  investigation. 

1  Nicolas,  Proc.  of  Privy  Council,  vol.  vi.  Introd.  p.  cxl. 


CHAPTER  XII 

THE   SEPARATION   OF  POWERS 

However  closely  and  completely  an  institution  or  a 
constitution  may  be  studied  by  those  familiar  in  practice 
with  its  working,  there  is  always  something  further  to  be 
learnt  by  regarding  it  from  a  distant  and  external  point 
of  view,  by  examining  the  efforts  made  at  imitation,  and 
even  by  investigating  intelligent  misconceptions  of  its  spirit 
and  its  working.  No  commentary  on  the  British  parliament 
is  more  illuminating  than  the  constitution  of  the  United 
States  of  America,  and  nothing  helps  to  understand  the 
sovereignty  of  parliament  so  clearly  as  the  doctrine  of  the 
separation  of  powers.  That  doctrine  was  deduced  by 
Montesquieu  from  his  study  of  the  English  constitution 
in  the  first  half  of  the  eighteenth  century;  it  was  accepted 
as  valid  by  Blackstone  a  generation  later;  and  it  was 
preached  with  unquestioning  fervour  and  conviction  by 
the  authors  of  the  American  federal  constitution  and  of 
the  State  constitutions  in  which  that  Union  abounds.  The 
division  of  the  functions  of  government  into  legislative, 
executive,  and  judicial  is  indeed  as  old  as  Athens  and 
Aristotle.  But  Montesquieu  "  was  the  first  to  demonstrate 
that  the  separation  of  governmental  powers  is  indispensable 
to  civil  liberty  " ;  ^  and  the  American  constitution — "  the 
greatest  government  God  ever  made,"  as  it  has  been  rashly 
called  by  an  ex-president  of  the  United  States — was  the 
first  to  be  constructed  on  that  principle.  A  few  quotations 
will  explain  the  meaning  of  the  doctrine  and  the  fundamental 
importance  that  has  been  attached  to  it. 

1  W.  Bondy,  The  Separation  of  Governmental  Powers  (Columbia  Univer- 
sity), 1896,  p.  13. 

235 


236  THE  EVOLUTION  OF  PARLIAMENT 

"  When  the  legislative  and  executive  powers  are  united 
in  the  same  person  or  body,"  says  Montesquieu,  "  there  can 
be  no  liberty  " ;  and  again,  '*  there  is  no  liberty  if  the 
judicial  power  be  not  separated  from  the  legislative  and 
executive."  ^  "  Wherever,"  declares  Blackstone,  "  the  right 
of  making  and  enforcing  the  law  is  vested  in  the  same  man, 
or  in  one  and  the  same  body  of  men,  there  can  be  no  public 
liberty."  ^  "I  agree,"  echoed  Alexander  Hamilton,  *'  that 
there  is  no  liberty  if  the  power  of  judging  be  not  separated 
from  the  legislative  and  executive  powers."  Washington, 
in  his  farewell  address,  carried  the  argument  a  step  further  :  ^ 
"  the  spirit  of  encroachment,"  he  declared,  "  tends  to  con- 
solidate the  powers  of  all  departments  in  one,  and  thus  to 
create,  whatever  the  form  of  government,  a  real  despot- 
ism " ;  and  the  first  constitution  of  Massachusetts,  adopted 
in  1780,  attempted  to  guard  in  perpetuity  against  the 
danger.  "  In  the  government  of  this  commonwealth,"  it 
provides,  "  the  legislative  department  shall  never  exercise 
the  executive  and  judicial  powers,  or  either  of  them ;  the 
executive  shall  never  exercise  the  legislative  and  judicial 
powers,  or  either  of  them ;  the  judiciary  shall  never  exercise 
the  legislative  and  executive  powers,  or  either  of  them;  to 
the  end  that  it  may  be  a  government  of  laws  and  not  of 
men."  * 

This  is  a  far  cry  from  Fieta's  rex  enim  hahet  curiam  suam 
in  concilic  suo  in  parliamentis  suis ;  and  an  Englishman 
who  is  not  overwhelmed  by  this  weight  of  testimony,  who 
is  not  convinced  that  this  drastic  separation  of  powers  has 
ever  existed,  or  exists  in  England  to-day,  and  yet  is  per- 
suaded that  his  country  is  not  quite  a  stranger  to  civil, 
religious,  and  political  liberty,  is  tempted  to  put  one  or  two 
preliminary  questions.  Firstly,  if  this  separation  of  powers 
existed,  as  Montesquieu  and  Blackstone  believed  that  it 
did  exist,  in  England  and  her  colonies  in  the  first  half  of  the 
eighteenth  century,  and  if  this  separation  of  powers  is  so 
unique  a  guarantee  of  liberty  and  so  sovereign  a  remedy 

^  Esprit  des  Lois,  xi.  c.  6.  ^  Commentaries,  5th  ed.,  i.  146. 

'  Bondy,  p.  17.  .       *  Ibid.,  p.  19. 


THE   SEPARATION  OF  POWERS  237 

against  despotism,  why  was  it  necessary  for  the  American 
people  to  issue  a  declaration  of  independence  and  resort  to 
war  in  defence  of  their  liberties  and  the  rights  of  man? 
Secondly,  why,  after  that  demonstration  of  the  inadequacy 
of  the  separation  of  powers  to  secure  liberty,  did  the  fathers 
of  the  American  constitution  adopt  it  as  their  palladium 
and  enshrine  it  in  the  heart  of  their  constitutional  affections  ? 
Thirdly,  why,  after  the  unanimous  acceptance  and  careful 
elaboration  of  the  principle,  was  it  necessary  seventy-five 
years  later  to  wage  another  and  a  still  more  terrible  war  to 
define  and  ensure  that  liberty  so  amply  guarded  by  the 
constitution?  And  fourthly,  what,  after  a  century  and 
more  of  '*  a  government  of  laws  and  not  of  men,"  and  after 
a  double  and  triple  assurance  of  liberty,  is  the  exact  point 
of  a  presidential  campaign  with  "  The  New  Freedom " 
as  its  war-cry  ?  ^ 

It  is  no  part  of  my  purpose  to  attempt  an  answer  to  any 
one  of  these  questions.  They  are  suggested  merely  in 
criticism  of  the  confident  assertion  that  liberty  cannot 
exist  without  a  separation  of  governmental  powers,  and  of 
the  optimistic  assumption  that  with  that  separation  liberty 
is  secure;  and  they  may  perhaps  help  to  reassure  some  of 
us  in  our  belief  in  English  liberty,  of  which  we  should  other- 
wise be  bereft.  For  assuredly  there  is  no  separation  of 
powers  in  the  British  constitution,  and  Montesquieu  was 
at  fault  alike  in  his  observation  and  in  the  deductions  he 
made  therefrom.  It  was  easy,  indeed,  to  be  misled  on  the 
point,  and  as  a  matter  of  fact  he  was  only  assuming  as 
accomplished  an  ideal  at  which  the  house  of  commons 
deliberately  aimed  in  the  early  part  of  the  eighteenth 
century.  It  was  the  age  of  place  bills ;  distrust  of  the  crown 
was  rampant  since  the  days  of  the  later  Stuarts ;  and  all  con- 
nexion between  the  court  and  the  commons  was  considered 
corrupting.  Many  attempts  were  therefore  made  to  preserve 
the  independence  and  purity  of  the  legislature  by  excluding 
from  it  all  servants  of  the  crown,^  and  thus  estabhshing  a 

*  This  was  President  Wilson's  battle-cry  in  the  election  of  1912. 
2  The  demand  was  put  forward  as  early  as  1536  in  the  Pilgrimage- of 
Grace  {Letters  and  Papers  of  Henry  VIII,  xi.  1143,  1244). 


238  THE   EVOLUTION   OF  PARLIAMENT 

complete  separation  between  the  legislative  and  executive 
powers.  Montesquieu's  mistake  lay  in  his  failure  to  realize 
that  the  growth  of  the  cabinet,  the  pivot  of  the  modern 
British  constitution,  was  already  destroying  that  separa- 
tion. It  is  more  singular  that  Blackstone  and  the  American 
lawyers  should  have  adopted  the  misconception,  though 
there  was  some  excuse  for  failure  to  discern  the  responsi- 
bility of  the  executive  to  the  legislature  in  George  Ill's 
cabinets  between  1763  and  1782. 

The  fundamental  unity  of  governmental  powers  in  England 
is  apparent  from  the  briefest  survey  of  the  constitution.  It 
is  not  a  mere  form  that  all  powers,  executive,  legislative,  and 
judicial,  are  vested  in  the  crown.  Every  item  of  legislation 
throughout  the  British  empire  is  enacted  by  the  king,  in 
person  or  by  deputy;  "every  single  act  of  administration, 
from  the  arrest  of  a  suspected  criminal  to  the  declaration  of 
a  war,  is  in  express  terms  his  act.  The  formula  is  carried 
out  logically  and  minutely;  his  image  and  superscription 
appear  on  every  coin,  his  monogram  on  every  mailcart  .  .  . 
he  is  every  day  plaintiff  in  a  thousand  suits  and  president 
of  a  hundred  courts."  ^  The  capacities  of  the  lord  chan- 
cellor are  almost  as  varied  as  those  of  the  crown  :  he  is  the 
head  of  the  judicature,  he  presides  over  one  branch  of  the 
legislature,  and  he  is  an  important  member  of  the  supreme 
executive.  We  have  two  supreme  courts  of  appeal,  the  house 
of  lords  and  the  judicial  committee ;  one  of  them  is  a  branch 
of  the  legislature,  the  other  a  committee  of  the  executive 
council.  So  far  from  there  being  a  rigid  separation  between 
the  legislature  and  the  executive,  there  is  the  closest  possible 
connexion.  Textbooks  say  that  the  legislature  controls  the 
executive;  publicists  complain  that  the  executive  controls 
the  legislature.  The  cabinet  is  part  and  parcel  of  the  legis- 
lature ;  and  but  for  the  presence  of  ministers  in  the  houses 
of  lords  and  commons,  parliament  would  be  unable  to 
discharge  its  constitutional  functions. 

The  judicature  stands  more  apart,  but  there  is  no  separa- 
tion of  powers  or  even  of  persons.  Judges  are  lords  of 
*  The  British  Empire,  ed.  A.  F.  Pollard,  1909,  pp.  169-70. 


THE   SEPARATION  OF  POWERS 


239 


parliament,  they  are  appointed  by  the  executive,  and  they 
can  be  removed  on  an  address  from  both  houses  of  parHa- 
ment.  Parhament  itself  is  a  court,  and  discharges  judicial 
functions.  In  private  bill  legislation,  a  committee  of  either 
house  can  hear  counsel  on  both  sides  and  summon  and 
cross-examine  witnesses.  Each  house  has  its  bar,  to  which 
petitioners  and  offenders  may  be  called.  Parliament  can  pass 
acts  supplementary  to,  or  overriding  the  verdicts  of  lowei' 
courts.  It  has  passed  hundreds  of  acts  granting  divorce 
which  could  not  be  obtained  from  the  courts ;  and  by  acts 
of  attainder  and  impeachments  has  brought  many  a  head 
to  the  scaffold.  Such  methods  may  not  recommend  the 
fusion  of  powers  to  transatlantic  critics;  but  at  the  worst 
they  bear  comparison  with  the  presidential  assassinations 
and  lynching  of  negroes  which  have  darkened  the  abodes 
of  purer  democracy.  More  important  are  the  facts  that 
parliament  defines  and  determines  the  law  and  the  justice 
which  the  courts  administer,  and  that  no  judge  can  dispute 
the  legality  of  an  act  of  parliament.  Nor  had  parliament 
to  wait  on  the  bench  before  it  could  levy  an  income-tax, 
legalize  trade  unions,  or  abolish  trusts. 

This  absence  of  delimitation  is  the  natural  characteristic 
of  a  constitution  that  has  grown,  and  not  been  concocted. 
The  separation  of  powers  in  pohtics  corresponds  to  the  fixity 
of  species  in  natural  science;  and  both  ignore  evolution. 
But  the  history  of  parliament  is  mainly  concerned  with  the 
evolution  of  institutions  from  a  common  protoplasm  and 
with  their  mutual  struggles  for  recognition  and  predomin- 
ance. The  influence  of  common  origin  pervades  every 
branch  of  English  government,  and  behind  all  its  specific 
functions  there  lies  a  fundamental  unity  symbolized  by  the 
crown.  But  there  has  been  speciahzation  and  differentiation, 
for  every  organism  which  fails  to  specialize  becomes  in- 
efficient; and  we  have  firstly  to  trace  the  differentiation 
which  gave  colour  to  Montesquieu's  fancied  separation; 
secondly,  to  indicate  the  limits  which  made  his  interpreta- 
tion fiction  and  not  fact;  and  thirdly,  to  inquire  how 
far    these    limitations    involved    the    disastrous    results 


240  THE  EVOLUTION  OF  PARLIAMENT 

which  seemed  so  patent  to  the  founders  of  the  American 
constitution. 

We  revert  to  Fleta's  description  of  parhaments,  and 
find  that  his  conception  of  a  composite  body  consisting  of 
court,  council,  and  parhament  is  amply  borne  out  by  the 
records.  Doubtless  the  executive  was  the  earhest  and  the 
most  prominent  of  the  composite  functions  of  government; 
war  begat  the  king,  and  his  first  duty  was  execution.  There 
was  little  scope  for  "  judgement  "  in  primitive  law,  and  less 
for  legislation  under  the  rule  of  primitive  custom.  What 
judgement  and  legislation  there  was,  was  passed  by  the  king, 
and  it  was  only  by  a  slow  process  of  differentiation  that  he 
partially  divested  himself  of  the  personal  exercise  of  these 
functions.  The  Norman  and  Angevin  rulers  judged  and 
legislated  as  well  as  administered,  and  even  under  Edward  I 
there  was  no  clear  discrimination.  When  the  king  holds 
his  court  in  his  council  in  parliaments,  he  can  clearly  do 
anything;  but  it  is  also  clear  that  the  king  in  council  can 
legislate  without  the  assistance  of  parliament.  Most  of 
Edward's  legislation  was  promulgated  before  the  days  of 
his  Model  Parliament.  Even  such  separation  of  powers  as 
may  be  imphed  in  the  requirement  of  the  assent  of  lords 
and  commons  to  legislation  has  never  been  completely 
effected,  and  in  1872  the  crown,  in  abolishing  by  an  order 
in  council  the  purchase  of  army  commissions,  carried  a 
measure  which  had  failed  to  pass  the  legislature. 

The  consent  of  a  council  to  legislation  was,  no  doubt, 
secured  in  practice  at  an  early  date,  and  probably  Edward  I's 
council  assented  to  all  his  enactments.  But,  in  the  first 
place,  the  power  of  the  coimcil  to  veto  legislation  has  never 
been  formally  admitted;  its  constitutional  function  was 
merely  to  advise,  and  it  is  no  part  of  the  law  of  the  con- 
stitution that  the  crown  must  take  the  advice  of  its  council. 
The  secrecy  which  has  always  enveloped  the  deliberations 
of  the  executive  in  England  precludes  any  accurate  know- 
ledge of  the  extent  to  which  English  kings  have  overruled, 
or  been  overruled  by,  their  councils ;  and  down  to  the  reign 
of  George  III  it  is  often  impossible  to  determine  how  far 


THE   SEPARATION   OF  POWERS  241 

the  policy  of  the  executive  was  that  of  the  king  or  his 
ministers.  Secondly,  a  council  is  primarily  part  of  the 
executive,  and  proof  of  its  fullest  control  over  legislation 
would  not  establish  any  separation  of  powers. 

The  presence  of  the  king's  council  in  parliament,  and  the 
extent  of  its  identity  with  the  lords  of  parliament,  render 
it  well-nigh  impossible  to  distinguish  in  the  middle  ages 
between  the  assent  of  the  council  to  legislation  and  the  assent 
of  a  second  chamber;  and  for  indications  of  any  clear 
distinction  between  executive  and  legislative  functions  we 
have  rather  to  look  to  the  relations  between  the  crown  and 
the  commons,  who  were  no  part  of  the  council.  The  matter 
is  complicated  by  taxation.  Apart  from  the  regular  feudal 
aids  and  tallages,  which  were  regarded  as  rent  rather  than 
taxes,  and  therefore  required  no  consent  for  their  exaction, 
there  was  never  any  idea  that  the  crown  could  tax  its  sub- 
jects without  their  consent ;  and  taxes  were  considered  as 
voluntary  grants  made  to  the  king  by  the  estates  in  parlia- 
ment. Not  until  towards  the  close  of  the  middle  ages  did 
taxation  take  even  the  form  of  legislation ;  ^  and  the  grant 
of  taxation  is  only  germane  to  the  separation  of  powers 
in  so  far  as  the  control  of  supplies  enabled  the  commons  to 
assert  an  influence  over  legislation. 

The  claim  of  the  commons  to  a  voice  in  legislation  is 
supposed  to  have  been  finally  established  by  the  statute  of 
York  in  1322.2  It  is  probably  nearer  the  truth  to  say  that 
the  claim  was  then  first  advanced ;  and  before  we  can  accept 
even  this  modified  version,  various  qualifications  have  to  be 
made.  Firstly,  if  the  claim  extended  to  all  legislation, 
centuries  elapsed  before  it  was  completely  admitted,  and 
there  is  at  least  plausibility  in  the  contention  that  it  was 
only  understood  to  apply  to  what  would  be  called  to-day 
constitutional  changes  or  alterations  of  fundamental  law, 
leaving  the  king  in  council  still  free  to  legislate  in  ordinary 

1  The  earlier  grants  were  made  in  the  form  of  an  indenture ;  and  even 
when  we  come  to  "  acts  for  a  tenth,"  etc.,  they  often  contain  indentures. 

2  Statutes  of  the  Realm,  i.  189;  Report  on  the  Dignity  of  a  Peer,  i.  282-3; 
Hallam,  Middle  Ages,  ed.  1878,  iii.  233;  Stubbs,  Const.  Hist.,  ed.  1887, 
ii.  369,  628. 

R 


242  THE  EVOLUTION  OF  PARLIAMENT 

matters  by  means  of  ordinances.^  Magna  Carta,  the 
Confirmatio  Cartarum,  and  the  Articuli  super  Cartas,  were 
undoubtedly  regarded  as  fundamental  law;  and  the  com- 
mons, in  asserting  a  voice  in  legislation,  would  naturally 
begin  with  the  more  obvious,  moderate,  and  conservative 
claim,  instead  of  with  a  sweeping  radical  pretension.  But, 
further,  it  must  be  remembered  that  ''the  commonalty  of 
the  realm,"  on  whose  behalf  the  claim  is  made,  is  a  phrase 
of  very  vague  meaning.  It  may  or  may  not  include  the 
city  and  borough  representatives ;  it  may  or  may  not  exclude 
the  clerical  proctors,  but  it  cannot  safely  be  identified  with 
the  still  undeveloped  house  of  commons.^  It  is  quite 
possible,  moreover,  that  the  real  emphasis  of  the  statute 
is  not  upon  "  commonalty  "  at  all,  but  upon  the  phrase  "  in 
parhaments  " ;  and  on  this  interpretation  the  statute  was 
better  observed  than  on  any  other.  Its  meaning  would  then 
be  that  matters  of  state  were  to  be  determined  in  parlia- 
ments, and  not  in  great  councils,  albeit  great  councils  some- 
times contained  representatives  of  cities  and  boroughs  as 
well  as  prelates,  earls,  barons,  and  knights,  and  continued 
to  be  summoned  throughout  the  middle  ages.  There  was 
certainly  a  well-recognized  distinction  between  the  functions 
of  parlianKnts  and  great  councils,  though  the  subject  has 
received  comparatively  little  attention.^  Finally  the  mere 
silence  of  a  public  meeting,  such  as  the  assembly  of  estates 
was  before  the  organization  of  the  house  of  commons, 
would  be  taken  as  giving  consent.  No  real  consent,  and 
therefore  no  approach  to  a  distinct  share  in  legislation, 
can  be  claimed  for  the  commons  until  it  is  expressed  in 
documentary  forms. 

Ten  years  later,  however,  we  have  in  the  records  of  the 
parliament  of  March  1332,  the  definite  statement  that 
certain  measures  "  ordained "   by  the  earls,  barons,   and 

1  G.  T.  Lapsley  in  Engl.  Hist.  Rev.  xxviii.  118-24;  Tout,  Reign  of 
Edward  II,  pp.  150-1. 

2  "  Whenever  you  meet  that  word  '  commonalty  '  in  ancient  proceedings, 
you  must  translate  it  a  community  not  the  commons  "  (Palgrave  in  Rep. 
on  Public  Petitions,  1833,  xii.  21). 

3  See  below.  Chap.  xiv. 


THE  SEPARATION  OF  POWERS  243 

other  magnates  were  read  before  them,  the  king,  the  knights 
of  the  shires,  and  the  gentz  du  commun,  were  found 
pleasing  to  them  all,  and  were  fully  agreed  to.^  Further 
progress  is  marked  in  1340,  when  twelve  knights  of  the  shire 
and  six  borough  members  were  added  to  a  committee  of 
prelates,  earls,  and  barons  to  try  and  examine  certain 
petitions  et  de  les  mettre  en  estatut.^  In  1343  there  is 
fuller  evidence  of  the  activity  of  the  commons  :  not  only 
is  their  advice  asked,  and  articles  drafted  by  the  lords 
submitted  for  their  consent,  but  they  add  provisions  of  their 
own,  and  the  ensuing  statutes  are  said  to  have  been 
**  ordained  "  by  la  commune  as  well  as  by  the  king  and 
the  peers.3  These  proceedings  imply  the  existence  of  that 
machinery  for  deliberation  and  the  expression  of  opinion 
without  which  consent  was  the  merest  form;  but  they 
do  not  imply  any  recognition  of  the  claim  that  the  assent  of 
the  commons  was  indispensable  to  legislation,  and  in  spite 
of  the  repeal  of  the  1382  statute  against  heretic  preachers,* 
there  remained  a  sphere  of  ecclesiastical  legislation  which  the 
commons  did  not  dispute. 

The  distinction  between  statute  and  ordinance  continued 
obscure  till  the  sixteenth  century ;  ^  and  the  province  of  pro- 
clamations was  contested  into  the  seventeenth.  Sir  Thomas 
Smith,  no  despiser  of  parliaments,  tells  us  that  "  the  prince 
useth  to  dispense  with  laws  made  " ;  and  even  the  Whigs, 
at  the  revolution  of  1688,  while  abolishing  the  suspending 
power,  only  abolished  the  power  of  dispensation  "as  it 
hath  been  exercised  of  late."  There  were  famous  orders 
in  council  during  the  Napoleonic  wars;  and  if  it  had  not 
been  possible  in  1906-7  to  legislate  by  similar  means,  the 
Transvaal  and  Orange  River  colonies  might  not  have  re- 
ceived responsible  government  yet.  Over  vast  areas  within 
the  British  empire  the  crown  can  legislate  without  the 
sanction  of  parliament;  nowhere  can  parliament  legislate 
without  the  sanction  of  the  crown;   no  important  measure 

^  Rot.  Pari.,  ii.  65.  *  Ibid.,  ii.  113. 

^  Ibid.,  ii.  135-9.  *  See  above,  p.  210. 

^  Cf .  Rot.  Pari.,  ii.  12 ;  Nicolas,  Proc.  of  Privy  Council,  vol,  iii.  pp.  vi, 
22  ;  Stubbs,  ii.  426-7, 


244  THE  EVOLUTION  OF  PARLIAMENT 

can  pass  without  the  goodwill  of  the  executive  cabinet; 
and  legislation  by  means  of  departmental  regulation  tends 
to  increase.  From  the  top  to  the  bottom  of  our  constitu- 
tion, from  the  privy  council  down  to  county  councils, 
borough  councils,  district  councils,  and  parish  councils,  every 
administrative  body  possesses,  within  limits  laid  down  by 
the  law,  legislative  powers  as  well.  The  notion  that 
the  executive  '*  should  never  exercise  the  legislative  and 
judicial  powers  or  either  of  them  "  is  one  which  could  only 
commend  itself  to  an  unsophisticated  community  with  the 
simple  conceptions  of  the  first  constitution  of  Massa- 
chusetts. So  far  from  the  separation  of  powers  being  a 
constitutional  dogma  in  the  British  empire,  it  is  regarded 
as  almost  unconstitutional — and  in  the  Au  ^ralian  Common- 
wealth it  is  positively  illegal — for  an  executive  minister  to 
be  long  without  a  seat  in  one  or  other  branch  of  the  legis- 
lature. The  crown  has  dissociated  itself  from  no  powers 
and  no  functions  of  government  whatsoever :  it  has 
associated  with  itself  in  the  exercise  of  those  powers  an 
ever- widening  circle  of  popular  representation,  and  every 
extension  of  that  circle  has  added  to  the  strength  and 
unity  of  the  will  expressed  by  the  crown. 

Imperfect  and  superficial  as  has  been  the  separation 
between  the  executive  and  legislative  powers,  the  divorce 
between  the  executive  and  the  judicature  has  hardly  been 
more  complete.  Between  council  and  curia  a  distinction 
is  barely  discoverable  in  the  reign  of  Edward  I.  The 
judges  are  all  members  of  the  council ;  the  supreme  arbiter 
of  differences  between  the  lower  courts  is  a  common 
session  in  council  in  parliament;  and  it  is  to  the  council 
that  petitions  in  parliament  against  judicial  abuses  are 
referred.  It  is  true  that  from  the  days  of  Henry  II  certain 
members  of  the  council  are  assigned  for  specific  judicial 
purposes,  and  that  their  specialized  functions  crystallize 
into  the  three  courts  of  common  law,  king's  bench,  ex- 
chequer, and  common  pleas ;  but  it  was  long  before  the  idea 
of  "  once  a  judge,  always  a  judge  "  obtained.  Judges  of 
the  common  law  courts  were  often  employed  in  executive 


THE   SEPARATION  OF  POWERS  245 

functions,  and  the  temporary  "  assignment  "  of  commissions 
of  knights  and  others  for  judicial  purposes  was  of  constant 
occurrence;  even  to-day  there  is  no  fixed  Hne  between 
judicial  and  other  functions,  and  laymen  are  often  employed 
in  judicial  inquiries.  We  are  told,  indeed,  that  about  1345 
the  judges  of  the  three  courts  cease  to  be  sworn  of  the 
council.^  But  in  Richard  II's  reign  they  are  still  assessors 
or  advisers  of  the  council  for  legal  purposes,  and  parliament 
insists  on  their  presence  in  the  council  on  these  occasions. 
Late  in  the  reign  of  Henry  VI  they  are  still  in  attendance, 
though  they  protest  that  they  are  of  the  council  for  matters 
of  law  and  not  of  politics. ^  In  Tudor  times  the  two  chief 
justices  were  commonly  members  of  the  privy  council, 
and  down  to  the  present  day  all  law  lords  and  lords  justices 
of  appeal  are  sworn  privy  councillors,  while  a  committee 
of  the  council  exercises  the  functions  of  a  supreme  court  of 
appeal  for  vast  areas  of  jurisdiction.  If  one  of  our  two 
supreme  courts  of  appeal  is  a  branch  of  the  legislature, 
the  other  is  a  committee  of  the  executive  council. 

Moreover,  the  abandonment  of  the  council  by  the  common 
law  judges  did  not  in  the  least  involve  a  separation  between 
the  judicial  and  executive  functions  of  the  council.  It 
simply  emphasized  the  abandonment  to  the  council  of  all 
jurisdiction  which  could  not  be  brought  within  the  narrowing 
and  hardening  frontiers  of  the  common  law,  a  process  to 
which  the  need  for  Tudor  despotism  has  ingeniously  been 
attributed.^  For  it  left  enormous  and  growing  fields  of 
jurisdiction  unprovided  with  any  judge  except  the  council 
and  its  offshoots.  Equity  was  thus  left  to  the  executive; 
chancery  was  the  king's  council  in  chancery,*  the  star 
chamber  was  its  sessions  for  dealing  with  over-mighty 
subjects,  the  court  of  requests  its  sessions  for  hearing  poor 
men's  complaints,  and  the  councils  of  the  North  and  of 
Wales  were  its  provincial  delegacies.     Nor  was  it  only  i;l 

1  Baldwin,  King's  Council  in  the  Middle  Ages,  p.  76. 

2  Ibid.,  pp.  205 ;  cf.  Nicolas,  Proc.  of  Privy  Council,  i.  76,  ii.  304,  iii. 
112,  132,  151,  313;  the  council  still  remained  a  curia. 

3  Cf.  Nicolas,  i.  297-8. 

*  Baldwin,  pp.  241-2;  Nicolas,  iii.  36. 


246  THE  EVOLUTION  OF  PARLIAMENT 

the  sphere  of  central  government  that  administrative  and 
judicial  functions  were  combined.  The  union  is  still  more 
marked  in  the  activities  of  the  justices  of  the  peace.  They 
administered  the  statutes  of  labourers  and  apprentices, 
the  vagrancy  acts  and  the  poor  law ;  and  they  acted  also 
in  petty  and  quarter  sessions  in  a  judicial  capacity.  In 
spite  of  a  multiplicity  of  local  government  acts,  this  com- 
bination continues  to  this  day,  and  to  enforce  a  separation 
of  powers  we  should  have  to  send  to  the  scrap-heap  our  whole 
system  of  magistracy.  We  should  also  have  to  break  up 
our  courts- martial,  our  consular  courts,  and  our  ecclesiastical 
courts,  in  all  of  which  executive  officers  act  judicial  parts. 
The  affairs  of  the  British  empire  cannot  be  managed  on 
the  lines  of  the  original  constitution  of  Massachusetts ;  and 
the  doctrine  of  the  separation  of  powers  was  an  ingenuous 
attempt  to  reduce  the  infinite  complexity  of  human  govern- 
ment to  the  sublime  simplicity  of  a  constitutional  rule  of 
three. 

So  far  we  have  been  dealing  with  the  retention  by  the 
executive  of  legislative  and  judicial  functions.  A  similar 
refusal  to  obey  the  rules  of  abstract  political  science  is  seen 
in  the  retention  by  the  legislature  of  its  hold  over  the 
executive  and  judicial  powers,  and  in  the  retention  by  the 
judicature  of  no  slight  power  of\piaking  law.  In  the  days 
of  Edward  I  and  his  immediate  successors,  when  parlia- 
ments met  three  times  a  year,  a  good  deal  of  administrative 
work  was  discussed  and  done  in  parliaments,  and  the  "  Rolls  " 
contain  pages  of  details  which  read  exactly  like  the  later 
"'Acts  of  the  Privy  Council."  But  the  expansion  and  popu- 
larization of  parliament,  and  its  development  into  estates 
and  houses,  made  it  less  and  less  suitable  for  the  transaction 
of  administrative  business.  This  was  withdrawn  more  and 
more  from  the  cognizance  of  the  king's  council  in  parlia- 
ment to  that  of  the  king's  council  out  of  parliament,  and  the 
council  itself  became  less  a  magnum  consilium  and  more 
a  consilium  privatum,  secretum,  or  continuum.  But  the 
council  remained  an  integral  part  of  the  legislature;  the 
lord    chancellor     presided     in    the    parliament    chamber, 


^ 


THE   SEPARATION  OF  POWERS  -z^y 

whether  he  was  a  peer  or  not,  and  secretaries  of  state  were 
given  by  statute  in  1539  official  seats  on  the  woolsacks. 
The  presence  of  privy  councillors  in  parliament  was  not  a 
Tudor  novelty  introduced  to  influence  its  decisions,  but 
a  practice  handed  down  from  the  reign  of  Edward  I;  the 
novelty  consisted  in  their  presence  in  the  house  of  commons 
rather  than  in  the  parliament  chamber,  and  illustrates  the 
growing  importance  of  the  commons  rather  than  the 
servihty  of  the  electors.  They  were  then,  as  they  are  now, 
the  means  through  which  the  wishes  of  the  legislature  were 
impressed,  if  not  imposed,  upon  the  crown. 

This  link  between  the  executive  and  legislature  was 
never,  in  spite  of  place  bills,  broken;  and  the  more  the 
actual  details  of  administration  were  withdrawn  from 
parliament,  the  more  it  began  to  insist  upon  the  general 
responsibility  of  ministers.  Impeachments  and  acts  of 
attainder  kept  the  principle  alive  from  the  reign  of 
Edward  III  to  the  Revolution,  when  more  refined  and 
effective  methods  for  achieving  that  end  were  devised  in  the 
practices  of  voting  supplies  and  legalizing  the  maintenance 
of  the  army  and  navy  for  one  year  only  at  a  time,  and  of 
refusing  the  means  of  carrying  on  government  to  ministers 
of  whom  the  commons  did  not  approve.  The  control  of 
the  executive  by  the  legislature  is  not  laid  down  as  a 
principle  in  any  law  of  the  constitution ;  it  is  none  the  less 
the  essence  of  the  constitution,  and  it  is  a  contradiction  in 
terms  to  attribute  a  separation  of  governmental  powers 
to  a  constitution  the  essence  of  which  consists  in  the 
control  of  one  by  the  other. 

The  connexion  between  legislature  and  judicature  has 
throughout  English  history  remained  no  less  intimate. 
Parliaments  began  in  a  court  of  law :  their  original  functions, 
indeed,  seem  to  be  hardly  distinguishable  from  those  of  the 
later  chancery;  their  forms  of  proceeding  by  writs,  bills, 
and  petitions  were  identical,  and  in  many  minute  details 
they  still  preserve  evidence  of  their  common  origin.  To 
devise  new  remedies  for  new  wrongs,  to  hear  and  determine 
pleas  that  had  been  delayed  or  about  which  the  judges 


248  THE  EVOLUTION  OF  PARLIAMENT 

differed,  were  the  oft-enunciated  purposes  of  parliaments. 
The  core  of  every  parhament  was  a  session  of  judges  in 
council,  and  the  earliest  pictorial  representation  of  the 
parliament  chamber  shows  that  its  inmost  circle  consisted 
of  four  woolsacks  arranged  vis-a-vis  to  facilitate  intimate  con- 
fabulation. On  the  upper  woolsack  sits  the  chancellor,  on  the 
sacks  to  his  right  and  left  the  justices  of  the  king's  bench  and 
of  common  pleas,  and  the  master  of  the  rolls,  and  opposite 
him  the  masters  in  chancery.  Behind  the  judges  there  sit, 
in  outer  rings,  the  bishops  and  abbots  to  the  right  and  the 
temporal  peers  to  the  left ;  and  below  the  bar,  opposite  the 
chancellor,  stand  the  Speaker  and  the  commons;  and  all 
these  elements  represent  the  legislative  accretion  on  the 
judicial  core.  No  assembly  organized  from  the  beginning 
as  a  legislative  body  would  have  assumed  the  configuration 
of  the  parliament  chamber. 

The  distinction  between  judicature  and  legislation  goes 
back,  however,  a  long  way;  and  its  earliest  traces  may 
perhaps  be  found  in  the  distinction  made  in  chancery 
between  judicial  and  original  writs.  The  former  might  issue 
as  matters  "  of  course,"  de  cursu,  but  "  the  granting  of 
specially-worded  writs  was  regarded  as  an  important  matter, 
which  required  grave  counsel  and  consideration  ...  it  was 
no  judicial  act."  ^  In  time  it  was  thought  that  only  a 
parliament  could  devise  new  remedies  and  ordain  new 
forms  of  procedure,  that  is  to  say,  that  only  parliament 
could  legislate.  This,  however,  was  a  limitation  of  chancery 
and  not  of  parliament,  and  there  was  no  suggestion 
that  delays  and  abuses  arising  out  of  common  litigation 
could  not  be  redressed  by  bills  and  petitions  in  parliament. 
The  gradual  loss  of  judicial  business  by  parliament  was  due 
to  its  political  development, ^  to  the  growing  rarity  of  its 
sessions  compared  with  the  permanence  of  the  council  and 
chancery,  and  to  the  development  of  "  common  "  petitions 
as  a  means  of  dealing  with  grievances  which  were  most 

1  Maitland,  Collected  Papers,  ii.  122-3  >  Pike,  Const.  Hist,  of  House  of 
Lords,  p.  296. 

2  See  above/ pp.  128-31. 


THE  SEPARATION  OF  POWERS  249 

widely  felt  and  enlisted  the  greatest  support.  But  even 
when  individual  petitions  come  to  be  habitually  referred  to 
the  council  and  chancery,  the  answers  are  given  per  auctori- 
tatem  parliamenti,  and  continue  for  a  while  to  be  entered  on 
the  "  Rolls.'*  ^  It  is  an  instance  of  delegation  of  functions, 
not  of  separation  of  powers.  The  legislature  long  retained 
in  its  hands  the  power  of  punishing  state  offenders  by  means 
of  impeachment  and  acts  of  attainder,  or,  in  other  words, 
of  dealing  judicially  with  persons  whose  influence  might 
render  them  immune  from  lower  courts  or  whose  offences 
could  not  easily  be  brought  within  the  four  corners  of  the 
common  law.  It  also  retains  judicial  authority  over  its 
own  precincts,  members,  and  servants.  Even  the  claim  of 
the  commons  to  hear  the  evidence  against  Thomas  Seymour 
in  1549  and  their  condemnation  of  Floyd  in  162 1  were  based 
upon  precedent,^  and  represent  attempts  to  retain  a  share 
in  the  common  inheritance  of  parliament,  and  not  a  spirit 
of  radical  innovation.  In  the  same  way,  the  reference  of 
individual  petitions  to  courts  of  law  did  not  preclude  the 
passing  of  private  acts  of  parliament  to  grant  relief  or 
impose  disabilities  where  other  means  might  fail :  down 
to  1857  ^^  ^ct  of  parliament  was  the  only  means  of 
annulling  a  valid  marriage.  It  is  to  the  house  of  lords 
that  appeal  lies  from  the  civil  courts  in  the  British  Isles, 
and  the  distinction  between  the  house  of  lords  as  a 
legislative  chamber  and  the  house  as  a  court  of  appeal 
is  merely  one  of  practice,  and  is  no  part  of  the  law 
of  the  constitution.  Finally,  while  parliament  will  rarely, 
if  ever,  intervene  nowadays  to  reverse  a  judicial  decision, 
it  will  and  does  intervene  to  reverse  the  principles  upon 
which  that  decision  has  been  based;  and  by  passing  acts 
of  indemnity  it  can  bar  judicial  action  in  multitudes  of  cases 
in  which  the  logic  of  common  law  would  inflict  intolerable 
injustice. 

The  withdrawal  of  the  judicature  from  executive  functions 

1  Nicolas,  Proc.  of  Privy  Council,  i.  73,  ii.  307,  309,  v.  p.  xi ;  Leadam, 
Star  Chamber,  i.  pp.  xxiii-xxiv;  see  above,  p.  128. 

2  See  below,  p.  309,  n.  2. 


250  THE  EVOLUTION   OF  PARLIAMENT 

has  been  a  more  comprehensive,  but  still  a  gradual  and 
an  incomplete  process.  The  prerogative  courts  of  the 
Tudor  period  were  councils  as  well ;  and  the  justices  of  the 
peace  did  most  of  the  work  of  local  government  till  late  in 
the  nineteenth  century.  A  lord  chief  justice  sat  in  the 
cabinet  as  late  as  the  same  century,  and  the  lord  chancellor 
continues  to  do  so  to-day.  Lords  justices  were  frequently 
appointed  to  govern  England  during  the  reigns  of  William  III, 
and  even  the  first  two  Georges,  when  the  king  was  abroad, ^ 
and  lords  justices  have  governed  Ireland  for  considerable 
periods  of  its  history.  Judges  have  acted  as  colonial 
governors  in  all  parts  of  the  British  empire,  and  some  of 
the  greatest  founders  of  New  England,  like  Bradford  and 
Winthrop,  combined  in  their  persons  the  supreme  judicial 
and  executive  functions,  without  presumably  entailing  upon 
those  colonies  the  deplorable  consequences  deduced  from 
the  combination  by  the  framers  of  the  constitution  of 
Massachusetts.  It  was,  however,  to  the  government  of 
men  that  those  logicians  seem  to  have  had  the  greatest 
objection. 

Their  boldest  effort  was  to  deprive  the  judicature  of  all 
control  over  legislation.  In  England,  as  we  have  seen,  the 
judges  practically  made  the  laws  in  the  middle  ages,  and  a 
chief  justice  alleged  the  fact  in  court  to  support  his  under- 
standing of  a  statute.  Baronial  jealousy,  however,  which 
insisted  that  judges  were  mere  ministers  of  the  crown  and 
could  not  be  peers,  succeeded  by  Richard  IFs  reign  in 
reducing  their  status  in  the  high  court  of  parliament  to 
that  of  mere  advisers  without  a  vote ;  and  in  1586,  when 
they  fell  foul  of  the  privilege  claimed  by  the  commons 
over  the  Norfolk  election  case,  that  house,  too,  resolved 
that  "  though  the  lord  chancellor  and  judges  were  competent 
judges  in  their  proper  courts,  yet  they  were  not  in  parlia- 
ment." 2  It  is  not  unlikely  that  this  limitation  applied 
originally  only  to  that  function  of  the  judicature  about  which 
the  barons  were  most  sensitive,  namely,  the  trial  of  peers. 

1  See  Prof.  E.  R.  Turner  in  Engl.  Hist.  Rev.,  xxix.  5453-76. 

2  Prothero,  Select  Documents,  p.  130. 


THE  SEPARATION  OF  POWERS  251 

But  the  statute  of  1539  clearly  states  that  no  one  under  the 
degree  of  a  baron,  although  he  were  lord  chancellor,  lord 
treasurer,  lord  privy  seal,  lord  president  of  the  king's  council 
or  chief  secretary,  and  sat  in  the  parliament  chamber  in  virtue 
of  his  office,  "  could  have  any  interest  to  give  any  assent  or 
dissent  in  the  said  house."  ^  The  anomaly  of  having  a 
lord  chancellor  to  preside  over  a  house  in  which  he  "  had 
no  interest  to  give  any  assent  or  dissent  *'  was  gradually 
removed  by  the  practice  of  creating  the  lord  chancellor  a 
peer,  though  the  rule  did  not  become  invariable  until  after 
the  reign  of  Queen  Anne.  The  cause  of  the  anomaly  by 
which  judges  sat  in  a  house  in  which  they  had  no  votes  was 
the  removal  of  the  business  for  which  their  presence  was 
primarily  required,  to  another  sphere.  "  In  proportion  as 
this  channel  enlarged,  i.  e.  direct  access  of  petitioners  to 
the  council,  chancery,  etc.,  instead  of  via  parliament,  the 
number  of  parliamentary  petitions  decreased.  Equity 
continued  to  gain  rapidly  upon  parliament,  and  about  the 
time  of  Edward  IV,  when  equity  was  fully  established,  the 
remedial  jurisdiction  of  parliament  wholly  ceased,  and  it 
does  not  appear  to  have  been  revived  to  any  extent  until 
the  time  of  James  I."  ^  The  lords  recovered  their  jurisdic- 
tion after  the  fall  of  the  prerogative  system  under  the 
Stuarts;  and  the  anomaly  of  judges  sitting  in  a  house 
which  dealt  with  no  judicial  business  was  subsequently 
eclipsed  by  the  anomaly  of  an  assembly  of  hereditary  peers 
exercising  a  supreme  appellate  jurisdiction  independently, 
or  even  in  defiance  of,  their  judicial  advisers.^ 

But  the  denial  of  votes  to  the  judges  in  the  house  of  lords 
did  not  dispose  of  their  influence  over  legislation.  It  has 
been  claimed  by  a  lawyer  that  in  the  fifteenth  century  "  the 
class  legislation  of  parliament  was  defeated  by  the  national 

1  31  Henry  VIII,  c.  10. 

2  Palgrave,  Report  on  Public  Petitions  (Pari.  Papers),  1833,  ^i^-  ^9' 
Mcllwain,  p.  133;  Maitland,  Memoranda,  p.  xxxiii.  Palgrave's  statement 
probably  requires  a  good  deal  of  qualification ;  it  may  be  due  to  the  fact 
that  parliamentary  petitions  for  the  period  are  not  in  the  Record  OflSce, 
but  at  Westminster. 

'  The  decision  of  the  house  of  lords  on  the  right  of  the  crown  to 
create  life  peers  was  taken  in  opposition  to  the  advice  of  the  judges. 


252  THE  EVOLUTION   OF  PARLIAMENT 

legislation  of  the  judges  " ;  ^  and  Coke  points  out  that  the 
judicial  decision  in  Taltarum  or  Talcarne's  case  effected  a 
reform  which  had  been  often  rejected  in  parliament.  The 
year  books  of  Henry  VII  contain  ample  evidence  that  before 
legislation  was  introduced  into  either  house  its  principles 
were  discussed  and  settled  by  the  judges  in  common  session. 
Thus  they  laid  down  the  principle  of  Poynings'  law  nine  years 
before  it  was  enacted;  they  defined  the  law  of  attainder 
before  bills  were  introduced  to  give  it  effect;  and  they 
decided  that  an  act  was  not  valid  unless  passed  by  the  house 
of  commons.^  Statutes,  indeed,  were  still  regarded  as 
measures  to  give  effect  to  the  law  as  interpreted  by  the 
judges.  Bacon's  encomium  on  the  practice  of  frequent 
consultation  between  the  crown  and  the  judges  was  sug- 
gested by  his  historical  reading ;  and  James  Fs  predilection 
for  it  was  no  constitutional  innovation.  It  can  only  be 
regarded  as  unconstitutional  in  the  light  of  ex  post  facto 
generaHzations  from  later  constitutional  practice.  The 
practice  admired  by  Bacon  was  no  doubt  objectionable 
from  the  democratic  point  of  view,  because  it  made  the 
judges  the  final  arbiters  of  the  liberties  and  laws  of  the 
English  people  so  long  as  parliament  could  be  muzzled  or 
suppressed.  But  the  remedy  did  not  lie  in  increasing  the 
separation  of  powers.  Judges  make  a  great  deal  of  law 
to-day  :  they  do  so  even  in  the  United  States,  in  spite  of 
the  paper  guarantees  of  "  a  government  of  laws  and  not  of 
men." 

The  truth  is,  that  human  affairs  cannot  be  cut  up  into 
mathematical  portions  and  confined  in  logical  categories. 
The  separation  of  powers  is  a  will  o'  the  wisp,  and  the 
rigid  restriction  on  paper  of  the  United  States  judicature 
to  strictly  judicial  functions  has,  in  point  of  fact,  enabled 
it  to  determine  all  sorts  of  political,  executive,  and  legislative 
questions.  A  legislative  veto  is  a  legislative  power,  and 
the  veto  of  the  supreme  court  on  American  legislation  has 

^  Mr.  (now  Justice)  Scrutton,  The  Land  in  Fetters,  p.  76. 

2  My  Reign  of  Henry  VII,  ii.  lo-ii,  19,  iii.  292-4;  Vinogradofif, 
"  Constitutional  History  and  the  Year-Books  "  in  Law  Quarterly  Review, 
xxix.  I-I2;  Mcllwain,  p.  325. 


THE   SEPARATION  OF  POWERS  253 

been  as  effective  as  ever  was  the  royal  veto  in  England. 
Without  the  leave  of  the  judicature  no  trade  could  be 
defined  by  the  legislature  as  a  dangerous  occupation, 
no  limit  could  be  set  to  hours  of  labour,  no  restraint 
imposed  on  the  conditions  of  employment,  no  measure 
taken  to  further  social  reform,  because  such  measures  always 
involve  some  restraint  on  somebody's  liberty  or  property, 
and  according  to  the  constitution  no  such  restraint  could  be 
imposed  "  without  due  process  of  law,"  by  which  is  meant, 
not  due  legislation,  but  judicial  procedure.  In  the  United 
States  the  solution  of  the  problems  of  social  reform  depends 
more  upon  the  judicature  than  upon  the  legislature.  By 
declaring  an  income-tax  unconstitutional  the  supreme  court 
compelled  the  legislature  to  devise  other  forms  of  taxation 
until  the  constitution  was  amended ;  and  it  thus  controlled 
taxation  as  well  as  legislation;  for  a  particular  course  of 
action  can  always  be  dictated  by  the  authority  which  can 
veto  all  alternatives. 

Nor  does  the  separation  of  powers  prevent  that  arbitrary 
exercise  of  them,  which  the  framers  of  the  American  constitu- 
tion dreaded  so  intensely.  It  is  rather  thereby  facilitated, 
for  within  its  sphere  each  authority  is  irresponsible  and 
unchecked ;  and  each  department  is,  under  the  constitution, 
the  final  and  exclusive  judge  of  its  own  competence.  Each 
of  the  powers  of  government  in  the  United  States  has 
greater  opportunities  for  arbitrary  action  than  in  England. 
Every  legislative  body  is,  for  instance,  the  arbiter  of  the 
validity  of  its  own  elections,  a  system  that  produced  many 
scandals  in  England  until  it  was  abohshed  by  reference 
to  the  judges.  Within  the  executive  sphere  the  president 
can  do  what  he  likes  for  his  prescribed  four  years ;  no  popular 
agitation,  no  vote  of  censure  by  the  legislature  can  drive 
him  from  office,  and  the  only  practical  means  of  removal  is 
assassination.  He  can,  indeed,  be  impeached,  but  only  for 
crime  and  not  for  his  policy.  Nothing,  too,  can  dissolve  the 
legislature  before  its  term  is  finished,  and  neither  legislature 
nor  executive  can  correct  an  interpretation  of  the  law  by  the 
supreme  court,  however  violent  or  opposed  to  the  pubHc 


254  THE  EVOLUTION   OF  PARLIAMENT 

conscience  it  may  be.  There  is  a  total  absence  of  that 
mutual  responsibility  and  control  which  has  proved  a  far 
better  safeguard  of  liberty  in  England  than  has  the  separa- 
tion of  powers  in  the  United  States. 

Here,  the  legislature  can  turn  out  the  executive  or  the 
executive  dissolve  the  legislature  at  almost  any  moment  in 
response  to  a  national  outcry.  Either  can  force  an  appeal 
to  the  people,  on  this  condition,  that  it  is  willing  itself  to 
submit  to  the  same  arbitrament.  There  is  nothing  sacrosanct 
or  fixed  about  the  cabinet's  tenure  of  ofhce  or  the  duration 
of  parliament;  a  parliament  may  be  dissolved  at  a 
premier's  nod,  and  a  cabinet  will  not  last  a  month 
unless  it  possesses  the  confidence  of  the  legislature.  Its 
conduct  of  affairs  is  reviewed  in  the  legislature  day  by  day 
by  means  of  questions  and  answers,  and,  if  necessary,  by 
motions  for  adjournment  or  of  want  of  confidence.  Even 
the  judicature  is  not  exempt  from  responsibihty ;  it  is 
true  that  judges  are  seldom  removed  by  the  formal  means 
of  an  address  of  both  houses  of  parliament,  but  informal 
hints  that  such  might  be  necessary  are  not  so  rare,  and  are 
as  a  rule  effective.  A  more  salutary  check  on  judicial 
extravagance  is  the  knowledge  that  decisions  like  some  of 
those  pronounced  by  supreme  courts  in  America  would 
precipitate  acts  of  parliament  preventing  their  repetition. 

This  system  of  mutual  responsibility  is  at  once  the  effect 
and  the  cause  of  confidence,  which  is  the  basis  of  the  con- 
stitution of  the  British  empire.  The  keynote  of  the  Ameri- 
can constitution  was,  on  the  other  hand,  distrust — distrust 
of  the  government  and  also  distrust  of  the  people.  The 
fundamental  assumption  was  that  every  man  is  by  nature 
not  free,  but  a  tyrant.  "  It  is,"  declared  John  Adams,  **  by 
balancing  each  of  these  three  powers  against  the  other  two 
that  the  efforts  in  human  nature  toward  tyranny  can  alone 
be  checked  and  restrained,  and  any  degree  of  freedom  pre- 
served." 1  They  were  not  to  co-operate  for  the  production 
of  good,  but  to  counterwork  one  another  for  the  prevention 
of  evil.  It  was  assumed  that  each  would  do  wrong  unless 
1  Quoted  in  Bondy,  p.  17. 


THE  SEPARATION  OF  POWERS  255 

it  was  checked;  and  the  people  could  not  be  trusted  to 
check  them.  Congress  cannot  force  an  appeal  to  the  people 
against  an  obstinate  president,  nor  the  president  against 
an  obstructive  congress.^  The  president's  term  was  fixed, 
and  re-election  discouraged,  lest  he  should  by  long  tenure 
of  office  so  corrupt  the  electorate,  or  create  by  means  of  the 
system  of  spoils  so  powerful  a  party  machine  that  he  would 
become  dictator  and  the  electors  helpless.  He  was  to  be 
prevented  from  governing  badly,  and  not  encouraged  by 
governing  well  to  look  forward  to  a  renewal  of  the  nation's 
confidence.  Indeed,  the  people  were  not  to  elect  him  at  all, 
but  a  college  of  prudent  men  better  fitted  to  choose  a  ruler 
for  the  peopl-e  than  the  people  themselves.  The  idea  of  a 
people  finding  its  ablest  men  and  trusting  them  so  long  as 
they  are  able  and  willing  to  serve  it,  still  seems  foreign  to 
the  United  States,  and  the  framers  of  the  constitution  did 
their  best  to  hamper  the  process  and  harness  the  popular 
will.  Theirs  was  the  age  of  paternal  despots,  but  rarely 
has  paternal  despotism  laid  its  dead  hand  on  the  future 
with  greater  effect  than  in  the  rigid  conditions  of  government 
which  the  United  States  constitution  imposed  on  four 
generations  of  freemen. 

This  fundamental  distrust,  expressed  in  the  separation 
of  powers,  explains  the  reason  why  American  efficiency,  so 
marked  in  private  concerns,  has  been  so  fettered  in  govern- 
ment. The  constitution  was  framed  under  the  dominance 
of  the  old  popular  prejudice  that  there  must  always  be  a 
fundamental  antagonism  between  the  interests  and  instincts 
of  the  government  and  those  of  the  governed.  No  one  could 
really  be  trusted  with  the  exercise  of  sovereign  power.  It 
was  therefore  put  under  the  lock  and  key  of  a  rigid  and 
written  constitution,  and  such  powers  as  were  permitted 
exercise  were  divided.  Thus  the  American  legislator 
attempts  to  legislate  without  the  co-operation  and  advice 
of  the  expert  in  administration,  and  the  administration  is 
isolated  from  the  wholesome  influence  derived  from  daily 
contact  with  a  popularly  elected  congress.  The  expert, 
1  Written  in  1 91 4. 


256  THE  EVOLUTION   OF  PARLIAMENT 

indeed,  is  reserved  for  private  adventures  and  not  for  the 
public  service;  and  conditions  which  no  American  would 
tolerate  in  his  private  business  are  regarded  with  equanimity 
in  the  affairs  of  the  nation.  The  civil  servants  of  the  state 
are  treated  as  no  individual  would  treat  those  on  whose 
service  he  relies.  Ambassadors  are  relegated  to  private 
life  at  every  change  of  government ;  they  are  paid  on  such 
a  beggarly  scale  that  wealth,  and  not  capacity  is  the  first 
requisite  for  a  diplomatist;  and  even  a  secretary  of  state 
has  been  driven  to  eke  out  subsistence  by  lecturing  tours. 
The  public  conscience  is  indifferent  to  these  details,  because 
the  public  believes  in  private  enterprise,  but  does  not 
realize  the  claims  of  efficient  national  government.  The 
separation  of  powers  is  an  expression  of  this  distrust  and 
indifference,  and  helps  to  explain  .why  American  politics 
are  unattractive  to  so  many  American  minds. 

There  were  good  reasons  for  the  adoption  of  that  principle 
in  the  eighteenth  century,  but  those  reasons  are  passing 
away.  Distrust  of  sovereignty  was  the  natural  product 
of  centuries  during  which  it  had  been  exercised  in  the 
interests  of  the  sovereign  and  not  in  those  of  the  people; 
and  confidence  grows  slowly  in  a  people  with  few  com- 
munications. The  previous  independence  of  one  another 
enjoyed  by  the  thirteen  colonies,  and  the  vast  extent 
over  which  their  scattered  and  heterogeneous  population 
was  spread,  engendered  distrust  of  a  common  sovereignty. 
Subsequent  extensions  of  territory  and  the  mighty  influx 
of  alien  immigrants  with  no  ideas  in  common  delayed  the 
consolidation  to  be  expected  from  the  development  of 
communications,  the  filling  up  of  vacant  territory,  and  the 
pressure  of  external  forces.  The  alien  immigrant  still 
provides  the  "  boss  "  with  the  raw  material  for  his  machine- 
made  politics,  and  feeds  the  public  distrust  of  a  government 
subject  to  such  manipulation.  When  the  **  hyphenated  " 
American  disappears,  the  '*  hyphenated  "  system  of  govern- 
ment by  separation  of  powers  will  go  with  it;  and  an 
American  nation  will  trust  a  national  government  with  the 
full  powers  of  sovereignty. 


THE   SEPARATION  OF  POWERS 


257 


The  separation  of  powers  will  then  be  reduced  to  its  true 
proportions  as  a  specialization  of  functions.  That  has  been 
the  limit  of  differentiation  in  English  government.  Execu- 
tive, legislature,  and  judicature  have  been  evolved  from  a 
common  origin,  and  have  adapted  themselves  to  specific 
purposes,  because  without  that  specialization  of  functions 
Enghsh  government  would  have  remained  rudimentary 
and  inefficient.  But  there  has  been  no  division  of  sovereignty 
and  no  separation  of  powers.  The  head  cannot  do  the 
w^ork  of  the  heart,  nor  the  hand  that  of  the  foot ;  but  that 
is  no  reason  for  disconnecting  them  one  from  the  other, 
and  endowing  each  with  a  will  of  its  own.  Above  all  we 
need  a  brain  and  a  conscience  to  move  every  limb  at  will 
and  without  the  abnormal  exertion  of  recourse  to  the 
cumbrous  machinery  of  reconstitution.  We  need  not 
dissolve  our  unity  of  will  in  a  trinity  of  powers;  and  that 
unity  of  will  is  expressed  by  the  crown  in  parliament. 


CHAPTER  XIII 

THE   CROWN   IN   PARLIAMENT 

The  establishment  of  sovereignty  in  parliament  secured 
unity  of  power,  but  did  not  determine  its  distribution  among 
the  various' elements  which  made  up  that  composite  body; 
and  the  forms  of  the  constitution  were  equally  compatible 
with  monarchy,  aristocracy,  or  democracy.  Whichever 
element  prevailed  would  have  national  sovereignty  at  its 
disposal,  but  there  was  no  clear  indication  which  that 
element  would  be.  Each  of  the  factors  in  parliament, 
crown,  lords,  and  commons,  has  claimed  at  different  times 
a  predominant  share  in  the  partnership ;  and  from  the  end 
of  the  Tudor  harmony  to  the  passing  of  the  parliament 
act  in  191 1  the  struggles  between  them  have  filled  many 
pages  of  constitutional  history.  The  crown  was  clearly 
the  effective  factor  in  parliament  under  Edward  I,  and 
with  considerable  fluctuations  it  retained  its  predominance 
until  the  Stuart  period.  That  predominance  was,  however, 
disputed  by  the  lords,  whose  constitutional  influence  was 
exerted  in  the  middle  ages  by  means  of  the  council  in. 
parliament,  and  in  modern  times  by  means  of  the  peers 
in  parliament.  The  reform  bill  of  1832  initiated  the  pre- 
dominance of  the  commons  in  parliament  which  was  com- 
pleted by  the  parliament  act  of  191 1.  Nevertheless,  the 
fundamental  difference  between  the  evolutionary  growth  oj 
the  British  constitution  and  the  revolutionary  creation 
other  systems  consists  largely  in  the  fact  that  the  cro^ 
was  never  expelled  from  parliament,  and  remains  an  essentia 
factor  in  its  organization.  Parliament  rqay  hold  the  cro^ 
in  solution,  but  the  crown  is  not  dissolved. 

The  conception  of  crown  and  parliament  as  two  distincj 
entities  confuses  the  interpretation  of  much  of  our  coi 

258 


THE   CROWN  IN  PARLIAMENT  259 

stitutional  history.  It  arose  in  the  Civil  War,  and  was 
perpetuated  by  the  eighteenth-century  dogma  of  the  separa- 
tion of  powers  which  was  stereotyped  in  American  constitu- 
tions. But  it  was  always  a  fundamental  misconception  of 
the  English  constitution;  it  tends  to  falsify  history  and  to 
render  unintelligible  the  actual  working  of  the  constitution 
of  the  empire.  The  problem  for  the  constitutional  historian 
is  not  to  discriminate  between  the  powers  of  the  crown  and 
those  of  parliament,  but  between  the  things  the  crown  could 
do  in  council  and  the  things  which  it  could  only  do  in  parlia- 
ment. The  powers  of  the  "  crown  in  parliament "  have 
never  been  defined,  and  they  have  no  constitutional  Hmits. 
The  "  crown  in  parliament  "  wields  a  sovereignty  which 
legally  and  constitutionally  is  absolute;  and  the  separation 
of  crown  and  parliament  is  a  dichotomy  which  divides  the 
indivisible,  and  promotes  the  cause  of  anarchy. 

There  had,  indeed,  been  a  real  separation  of  powers  in  the 
middle  ages  between  regnuni  and  sacerdotium,  and  none  save 
a  few  extremists  denied  that  each  had  an  independent  juris- 
diction. Edward  I  often  in  pariiament  refused  to  trench  upon 
the  sphere  of  the  ecclesiastical  courts,^  and  he  gave  that  sphere 
an  elastic  interpretation  in  his  writ  circumspede  agatis.  On 
the  eve  of  the  Reformation  the  king's  judges  denied  that  an 
act  of  parliament  could  make  the  king  an  ecclesiastical 
person,^  and  parliament  itself,  in  the  reign  of  Henry  VII,  was 
chary  in  restricting  the  enormous  hberties  of  clerical  criminals. 
It  was  this  well-nigh  universal  recognition  of  a  supreme 
ecclesiastical  jurisdiction  that  was  repudiated  by  the  act  of 
supremacy  against  the  will  of  the  cathoHc  church  and  with- 
out the  consent  of  nine-tenths  of  its  provinces.  The  revolu- 
tion was,  however,  successful,  and  its  effect  was  to  establish 
the  absolutism  of  the  "  crown  in  pariiament,"  which  is  a 
very  different  thing  from  the  supremacy  of  the  crown  over 
parliament. 

The  problem,  therefore,  is  not  to  define  the  unHmited  and 

1  Cf.  Rot.  Pari.,  i.  3,  42,  46. 

*  Mcllwain,  pp.  277-9.  If  he  was  a  semi-ecclesiastical  person,  he  was 
made  so  by  the  ecclesiastical  unction  he  received  at  coronation  and  not 
by  any  Act  of  Parliament. 


26o  THE  EVOLUTION   OF  PARLIAMENT 


undivided  authority  of  the  **  crown  in  parhament,"  but  t 
trace,  firstly,  the  Hmitations  of  the  "  crown  in  council/'  and 
secondly,  the  shifting  weight  of  the  various  elements  in  that 
composite  entity  the  "  crown  in  council  in  parliament." 
The  restriction  of  the  powers  of  the  "  crown  in  council  " 
was  effected  by  parliamentary  legislation ;  and  it  was  possible 
to  limit  the  "  crown  in  council  "  by  that  method,  because 
from  the  time  of  Edward  I  onwards  the  **  crown  in  council 
in  parliament  "  had  admittedly  enjoyed  fuller  powers  than 
the  "  crown  in  council."  It  had  long  been  possible  to  appeal 
from  the  king  in  person  to  the  king  in  sober  council,  by  writ 
of  error  from  coram  rege  to  the  king  in  parliament ;  and  in 
repeated  great  councils  it  had  been  held  that  only  in  parlia- 
ment could  questions  of  peace  or  war  be  decided.^  The 
delimitation  of  the  powers  of  the  various  elements  in  the 
'*  crown  in  council  in  parliament  "  could  not,  on  the  other 
hand,  be  easily  achieved  by  parliamentary  legislation,  because 
crown,  lords,  and  commons  each  possessed,  since  the  fifteenth 
century,  an  absolute  veto  over  the  resolutions  of  the  others. 
Hence  the  great  changes  in  this  sphere  were  accomplished 
by  open  force  in  the  Civil  War  and  at  the  revolution  of  1688, 
and  by  veiled  coercion  in  1832  and  191 1.  Similarly  it  was 
not  by  legislation,  but  through  decay  of  power  that  the 
crown  lost  its  veto,  and  the  lords  their  hold  on  finance  and 
administration. 

The  problem  of  the  crown  in  council  does  not  fall  within 
the  scope  of  this  essay  except  in  so  far  as  concerns  its  relations 
with  parliament.  Its  domestic  history  has  been  treated  in 
a  number  of  admirable  monographs,  whose  main  defect  is 
that  they  leave  on  one  side  the  position  of  the  council  in 
parhament  and  its  relations  with  the  council  out  of  parlia- 
ment.2    It  is  with  the  former  that  we  shall  have  to  deal ;  but 

1  Nicolas,  Proc.  of  Privy  Council,  vol.  i.  pp.  xxxviii,  144.  It  was  a 
stipulation  of  the  treaty  of  Etaples  in  1492,  following  the  precedent  of 
Troyes  in  1420,  that  it  should  be  confirmed  by  the  three  estates  of  the 
two  realms  (2  Henry  VII,  c,  65).  Cf.  Cottoni  Posthuma,  pp.  13-39.  and 
Vemon-Harcourt,  His  Grace  the  Steward,  p.  248.  For  detailed  proceedings 
on  writs  of  error  in  parliament  cf.  Rot.  Pari.,  iv.  18,  411-13. 

2  See  Baldwin,  The  King's  Council,  1914.  Cf.  Nicolas,  iv.  185-6,  and 
Rot.  Pari.  iv.  424&,  for  references  to  "  the  king's  great  council  in  parlia- 
ment "  and  the  king's  "  council  out  of  parliament." 


THE   CROWN  IN  PARLIAMENT  261 

inasmuch  as  the  council — ^whether  in  parliament  or  not — 
was  subordinate  to  the  crown,  it  will  be  convenient  to 
discuss  first  the  position  of  the  crown  in  parliament. 

The  throne,  which  the  lords  have  sought  to  exclude  from 
their  house,  is  more  than  a  bare  symbol;  for  the  crown 
in  parliament  is  a  real  presence,  which  did  not  cease  to  be 
real  when  it  ceased  to  be  corporal.  Down  to  the  middle  of  the 
seventeenth  century  no  one  visualized,  and  no  artist  depicted 
parliament  without  the  king  enthroned  in  the  midst  thereof. 
In  the  reflex  hght  of  later  history  Henry  VIII's  presence  in 
parliament  has  been  regarded  as  exceptional  intervention 
with  a  view  to  interference  with  its  liberties.  But  time 
had  been  when  the  royal  presence  was  the  rule  and  not  the 
exception ;  in  the  sixteenth  century  the  throne  in  the  parlia- 
ment chamber  was  not  intended  to  be  empty ;  and  its  vacancy 
to-day  does  not  indicate  that  the  king  has  no  right  to  be 
present,  but  that  the  lords  have  reduced  that  right  to  an 
empty  form.^  The  crown  is,  indeed,  the  core  out  of  which 
the  rest  of  parliament  has  grown;  for  the  crown  expanded 
into  the  "  crown  in  council,"  and  then  into  the  "  crown  in 
council  in  parliament."  Constitutional  theory  thus  repre- 
sents historical  fact.  Historians  a  generation  ago  were  wont 
to  trace  in  Anglo-Saxon  localism  the  original  liberties  of  the 
English  constitution,  and  liked  to  dwell  upon  its  analogies 
with  the  equally  local  and  primitive  liberties  of  Uri  and 
Schwyz.  It  is  significant  that  the  same  historians  admired 
federal  government,  and  saw  in  the  constitution  of  the 
United  States  a  true  reflection  of  Enghsh  constitutional 
principles.  That  there  were  germs  in  common  is  obvious ; 
but  the  differences  are  fundamental.  The  English  constitu- 
tion has  always  been  unitary ;  those  of  Switzerland  and  the 

*  The  minority  of  Edward  VI,  followed  by  the  reign  of  two  queens, 
contributed  as  much  towards  the  sovereign's  absence  from  parliament  as 
the  reign  of  Queen  Anne,  followed  by  those  of  two  Germans,  did  to  a 
similar  absence  from  the  privy  council.  The  parliament  chamber,  of  course, 
must  not  be  confused  with  the  house  of  commons.  The  commons  protested 
in  1523  against  Wolsey's  presence  as  infringing  their  liberties;  and,  while 
the  commons  often  visited  Henry  VIII — and,  indeed,  insisted  upon  their 
right  of  access — it  is  doubtful  whether  Henry  VIII  ever  visited  the  house 
of  commons. 


262  THE  EVOLUTION  OF  PARLIAMENT 

United  States  are  federal,  and  in  neither  is  there  anything 
corresponding  to  the  crown  in  parUament.  Their  constitu- 
tions start  from  the  lowest  forms  of  political  association, 
which  only  delegate  to  the  higher,  remaining  themselves  the 
residuary  legatees  of  sovereignty.  The  English  constitution 
starts  with  the  crown  and  works  ddwnwards;  in  England 
local  legislatures  only  receive  the  powers  the  nation  grants ; 
in  truly  federal  states  the  nation  only  receives  those  which 
the  local  assemblies  bestow.  The  forms  of  federal  govern- 
ment are  more  flattering  than  our  own  to  popular  suscepti- 
bility, but  place  greater  impediments  in  the  way  of  effective 
national  action. 

Parliament  is  thus  an  emanation  from  the  crown;  it  was 
summoned  by  royal  writs  to  meet  in  a  royal  palace,  and  the 
royal  business  always  stood  first  on  its  medieval  agenda. 
The  crown  accorded  or  rejected  its  petitions  at  will,  and  le  roy 
le  veuU  is  still  the  phrase  which,  pronounced  in  parliament, 
makes  an  act.  Throughout  the  middle  ages  the  commons 
remain  but  suitors,  and  the  lords  the  counsellors,  of  the 
crown  in  parliament.  It  is  the  crown  which  legislates, 
on  the  petition  of  the  commons  and  the  advice  of  the  lords. 
Legislation  in  parliament  has  the  highest  sanction;  but  it 
is  not  the  only  method  of  legislating,  and  the  crown  has 
never  been  completely  debarred  from  legislating  without 
parliament  by  means  of  ordinance,  proclamation,  and  order 
in  council.^  The  financial  needs  of  the  crown  and  the 
commons'  control  of  the  purse  made  every  parliament  an 
exchange  and  mart,  in  which  the  commons  bargained  for 
legislation,  and  the  crown  for  grants  of  money.  But  this 
was  the  custom  and  not  the  law  of  the  constitution.  If 
the  crown  needed  no  grants,  the  commons  could  extort  no 
legislation;  they  could  always  petition,  but  the  right  of 
petition  in  itself  confers  no  power  to  initiate  legislation. 

There  was  no  doubt  about  the  power  of  the  crown  to 
prevent  legislation  by  lords  and  commons ;  there  was  more 
ambiguity  about  the  power  of  the  lords  and  commons  to 

1  As  recently  as  December  1919  the  attorney-general  argued  in  court 
that  by  proclamation  the  crown  could  prohibit  every  kind  of  import. 


I  THE   CROWN  IN  PARLIAMENT  263 

prevent  legislation  by  the  crown,  and  this  legislation  might  be 
effected  either  in  parliament  or  outside.  Within  the  parlia- 
ment chamber  it  might  seem  that  legislation  by  the  crown 
would  be  controlled  by  lords  and  commons.  But  effective 
machinery  for  this  purpose  was  conspicuous  by  its  absence 
I  at  the  close  of  the  middle  ages.  The  indispensable  forms 
were  few;  a  bill  must  be  read  in  the  parliament  chamber, 
and  the  king  must  give  his  assent.  But  Henry  VII  thought 
he  could  pass  an  act  of  attainder  in  parliament  without 
consulting  the  commons.^  The  judges  decided  against  him, 
and  he  accepted  their  opinion.  But  the  assent  of  the  com- 
mons was  often  little  more  than  a  form.  "  Howbeit,"  writes 
a  parliamentary  correspondent  of  the  said  act  of  attainder, 
"  ther  was  many  gentlemen  agaynst  it,  but  it  wold  not  be, 
for  yt  was  the  king's  pleasure."  ^  The  lack  of  commons' 
Journals  before  1547  makes  it  impossible  to  speak  with 
confidence,  but  Bishop  Stubbs's  assumption  that  the  account 
given  by  Sir  Thomas  Smith  of  Elizabeth's  parliaments  holds 
good  for  the  fifteenth  century  is  somewhat  rash.^  Of  any 
three  readings  in  either  the  lords  or  the  commons  there  is 
no  evidence  before  1495,  and  any  legal  requirement  of  assent 
by  the  commons  was  fully  met  by  the  word,  or  even  perhaps 
by  the  silence,  of  the  Speaker  at  the  bar  of  the  parliament 
chamber.  Bills,  first  read  in  the  lords,  were  sometimes 
"  transportatae "  across  to  the  commons  in  the  chapter 
house  for  their  consideration;  and  their  petitions  were 
"  baillees  aux  seigneurs."  But  many  an  act  in  the  fifteenth 
century  begins  with  none  of  the  modem  formulae,  but  with 
such  phraseology  as  "  the  king  calling  to  remembrance,"  or 
"  the  king  remembring "  such  and  such  circumstances, 
ordains,  enacts,  or  establishes  such  and  such  a  remedy, 
generally  with,  but  often  without  mention  of  the  assent  of 
the  lords  spiritual  and  temporal  and  of  the  commons.    There 

1  See  my  Reign  of  Henry  VII,  ii.  19;   Year  Book,  4  Henry  VII,  p.  18. 

2  Ibid.,  i.  32. 

3  Stubbs,  Const.  Hist.,  iii.  483.  For  reasons  which  I  have  given  in 
Trans.  Royal  Hist.  Soc,  3rd  Ser.,  viii.  26-7,  the  absence  of  commons' 
Journals  before  1547  seems  to  me  clearly  due,[not  to  loss  of  the  MS.,  but 
to  the  fact  that  no  Journals  were  compiled. 


264  THE  EVOLUTION  OF  PARLIAMENT 


is  sometimes  a  curious  blend  of  the  autocratic  formulae  of] 
Roman  and  papal  law  with  parliamentary  language  which 
illustrates  the  menace  of  the  "  reception  "  to  the  English 
constitution.  Edward  IV,  for  instance,  **  of  his  most  blessed 
disposition,  mere  motion,  and  certain  science,  by  the  advice 
and  assent  of  the  lords  spiritual  and  temporal,  and  of  the 
commons  of  this  realm  in  this  his  present  parliament  assem- 
bled, and  by  authority  of  the  same,  ordaineth,  enacteth,  and 
establisheth  that  all  and  every  acts  and  act  made  in  any 
of  the  parliaments  holden  since  the  first  day  of  his  reign,  or 
in  this  present  parliament  made  or  to  be  made,  be  not  in 
any  wise  prejudicial  "  to  the  dean  and  canons  of  St.  Mary's, 
Leicester.^ 

There  was  abundance  of  royal  legislation  in  parliament  in 
the  reign  of  Henry  VII.  On  the  thirty-first  day  of  parliament, 
in  the  twelfth  year  of  his  reign,  the  king  "  with  his  own  hand 
delivered  in  a  bill  of  trade  then  read  "  ;  ^  and  legislation  thus 
royally  introduced  was  not  necessarily,  and  perhaps  not  at 
all,  cast  in  the  form  of  parliamentary  petitions ;  it  may  have 
been  Henry  VIII  or  Thomas  Cromwell  who  first  selected  this 
humble  garb  for  the  royal  proposals.  Nor  was  there  yet  any 
rule  that  all  acts  of  parliament  required  the  commons' 
consent.  No  doubt  the  "  communes  petitiones  "  represented 
the  wish  of  the  commons ;  but  that  house  had  as  yet  estab- 
lished no  right  to  debar  the  individual  petitioner  from  access 
to  the  crown  in  parliament ;  and  the  petition  of  the  city  of 
Gloucester  to  Edward  IV  in  the  parliament  of  1473  is  granted 
by  the  king  by  the  advice  of  the  lords,  and  is  enrolled  as 
an  act  of  parliament,  without  any  intervention  by  the 
commons.^  The  legislative  power  of  the  house  of  commons 
rests  upon  the  denial  of  the  right  of  the  crown  to  legislate 
upon  the  petition  of  the  individual.  Individuals  and  groups 
of  individuals  can  petition  the  crown,  but  no  such  petition 
can  now  become  law  unless  it  is  adopted  as  a  common  peti- 
tion of  the  house  of  commons.  The  right  of  the  subject 
to  secure  legislation  by  individual  petition  to  the  crown  in 

^  Rot.  Pari,,  vi.  486.  2  Cottoni  Posthuma,  1672,  p.  54. 

2  Rot.  Pari.,  vi.  49;  cf.  ihid.,  v.  68. 


THE   CROWN  IN  PARLIAMENT  265 

parliament  was  one  of  the  medieval  liberties  destroyed  by  the 
growth  of  the  house  of  commons.  The  commons  could  only 
limit  the  legislative  discretion  of  the  crown  by  controlling 
the  approach  of  the  individual  petitioner,  and  the  house 
adopted  the  practice  of  presenting  petitions  ex  parte  in  order 
to  block  petitions  not  backed  by  themselves.  Most  of  the 
individual  petitions,  which  are  becoming  **  private  acts  '* 
in  the  fifteenth  century,  are  presented  in  this  way  to  the 
crown  and  lords  in  parliament ;  but  the  access  of  individuals 
to  the  crown  in  parliament  was  not  yet  completely  barred, 
and  the  king  could  make  acts  in  parliament  on  the  petition 
of  other  bodies  than  the  house  of  commons. 

The  commons  themselves  connived  at  a  wide  legislative 
discretion  on  the  part  of  the  crown  outside  parliament. 
In  1504  parliament,  acquiescing  in  Henry  VH's  declared 
intention  of  not  calling  another  together  for  a  "  long  time," 
and  recognizing  the  hardship  thus  inflicted  on  applicants 
for  the  repeal  of  their  attainders,  empowered  the  king  to 
repeal  several  acts  by  letters  patent.^  By  legalizing  a  bene- 
volence in  1495,  it  countenanced  royal  taxation  without 
parliamentary  grant,^  feeling  perhaps  that  the  individual's 
liberty  was  not  more  seriously  violated  by  the  gift  he  made 
to  the  king  than  by  a  tax  imposed  by  parliament.  Legis- 
lation concerning  foreigners,  if  not  regarded  as  being  outside 
the  scope  of  parliament,  was  held  to  be  at  least  equally  a 
matter  for  council ;  and  in  1515  the  lords  determined  that 
a  certain  bill  possit  tarn  per  concilium  quam  per  actum 
parliamenti  provideri,  cum  non  concernat  subditos  domini 
regis,  sed  extraneos.^  Foreign  trade  came  within  this  discre- 
tion, and  in  1534  Henry  VHI  was  authorized  by  act  of 
parliament  to  repeal  or  revive  all  statutes  since  1529  touch- 

*  19  Henry  VII,  c.  28;  Rot.  Pari.,  vi.  526;  Statutes  of  the  Realm,  ii. 
669.  Edward  IV  exercised  this  power  (Baldwin,  p.  427)  merely  on  the 
advice  of  his  council.  Parliament  in  1523  gave  it  to  Henry  VIII  for  life 
{Lords'  Journals,  vol.  i.  p.  cxxi.). 

2  II  Henry  VII,  c.  10 ;  Statutes  of  the  Realm,  ii.  576. 

»  Lords'  Journals,  i.  56.  Cf.  ibid.,  i.  17  :  "  Et  dictum  et  decretum  est 
per  dominum  cancellarium  et  episcopum  Wynton.,  quoad  provisioRes  pro 
mercatoribus  de  Hanse,  quod  provisio  pro  ipsis  per  regem  signata  sufficiet 
eis  absque  assensu  dominorum  aut  domus  communis";  also  ibid.,  i.  41. 


266  THE  EVOLUTION  OF  PARLIAMENT 

ing  exports  or  imports. ^  It  seemed  a  greater  extension  of 
the  royal  prerogative  when  he  was  authorized  to  leave  the 
crown  by  will,  though  he  was  never  empowered  to  leave  it 
away  from  his  one  child  whose  legitimacy  was  beyond 
dispute.^  But  the  highwater  mark  of  royal  legislation  was 
reached  by  the  statute  of  proclamations,  which  gave  them 
the  force  of  law.^ 

This  lex  regia  has  excited  so  much  attention,  and  gives 
rise  to  such  apparent  contradictions,  that  it  deserves  careful 
consideration.  The  point  that  most  forcibly  strikes  the 
student  of  history,  as  distinct  from  the  student  of  law,  is 
the  extent  to  which  this  act  remained  a  dead  letter.  It 
may  be  that  it  was  Cromwell's  rather  than  Henry  VIH's 
proposal;  Bishop  Gardiner  relates  a  conversation  between 
Henry  VIII,  Cromwell,  and  himself,  in  which  Cromwell  advo- 
cated the  policy  of  making  the  king's  will  the  law,  and 
Gardiner  replied  by  advising  the  king  to  make  the  law  his  will.* 
Cromwell  fell  in  1540,  the  year  after  the  statute  of  proclama- 
tions was  passed;  Gardiner  became  the  most  influential  of 
Henry's  advisers,  and  the  act  was  almost  ignored.  A 
hundred  and  twenty  proclamations  are  known  to  have  been 
issued  between  the  passing  of  that  statute  and  Henry's 
death,^  and  not  one  of  these  seems  to  depend  for  its  validity 
on  the  statute.  The  great  majority  of  them  relate  to 
matters  arising  out  of  the  state  of  war  between  England 
and  France  in  1543,  matters  which  down  to  this  day  are 
regulated  by  royal  proclamation ;  and  the  rest  were  mostly 
the  mere  proclamation  or  publication  of  statutes  passed 
by  parliament.  Either  Henry  VIII  did  not  interpret  the 
statute  as  conferring  new  powers  of  legislation  on  the 
crown,  or  else  he  refrained  from  using  them.  It  is  no 
less  certain  that  he  did  not  regard  the  statute  as  enabling 
him  to  dispense  with  the  assistance  of  parliament  in_ 
legislation.     Sessions  were    as    frequent   after   the   statute 

1  26  Henry  VIII,  c.  10. 

2  28  Henry  VIII,  c.  7;  35  Henry  VIII,  c.  i. 

3  31  Henry  VIII,  c.  8. 
*  Foxe,  Acts  and  Monuments,  vi.  45-6. 
^  Steele,  Tudor  and  Stuart  Proclamations,  i.  20-31. 


THE   CROWN  IN  PARLIAMENT  267 

as  before  it,  and  the  numerous  bills  that  were  introduced 
and  passed  give  little  support  to  the  supposition  that 
Henry  could  have  achieved  the  same  objects  by  proclama- 
tion. It  never  seems  to  have  occurred  to  any  one  that  the 
king  might,  for  instance,  have  confiscated  chantries  by 
proclamation,  although  the  bill  for  that  purpose  was  hotly 
debated  and  narrowly  escaped  defeat.^  Some  bills  were 
actually  rejected,  but  no  steps  were  taken  to  repair  their 
loss  by  means  of  the  powers  which  the  statute  of  proclama- 
tions is  supposed  to  have  placed  in  Henry's  hands. 

The  act  would  appear,  then,  to  have  been  a  piece  of 
gratuitous  dogma,  more  in  keeping  with  Stuart  pretensions 
than  with  Tudor  practice,  unless  some  other  interpretation 
of  it  is  possible.  It  may  be,  however,  that  Tudor  lawyers 
were  more  literal  than  modern  historians,  and  that  when 
parliament  passed  "  an  act  that  proclamations  made  by 
the  king  shall  be  obeyed,"  it  never  dreamt  of  extending 
the  sphere  of  proclamations  or  restricting  that  of  parlia- 
mentary statutes.  It  simply  meant  that  within  their  proper 
and  recognized  sphere  proclamations  were  to  have  the 
binding  force  of  law — and  unless  they  have,  they  are  useless 
even  to-day.  That  sphere  was,  indeed,  defined  by  the  act 
itself,  which  provided  that  none  of  the  king's  heges  should 
"  have  any  of  his  or  their  inheritances,  lawful  possessions, 
offices,  liberties,  privileges,  franchises,  goods  or  chattels 
taken  from  them  or  any  of  them,  nor  by  virtue  of  the  said 
act  suffer  any  pains  of  death  other  than  shall  be  hereafter 
in  this  act  declared."  It  was  not  to  be  used  to  repeal  any 
existing  laws,  "nor  yet  any  lawful  or  laudable  customs,"  and 
the  people  really  affected  by  the  act  were  *'  such  persons 
which  shall  offend  any  proclamation  to  be  made  by  the 
king's  highness,  his  heirs  or  successors,  for  and  concerning 
any  kind  of  heresies  against  Christian  religion."  The  act 
of  proclamations  was  in  effect  an  act  to  put  into  practice 
the  theory  of  the  act  of  supremacy.  That  act  had  been 
merely  declaratory,  and  had  contained  no  pains  and 
penalties;  the  treason  act  of  1535  had,  indeed,  penalized 
1  See  below,  p.  336. 


268  THE  EVOLUTION  OF  PARLIAMENT 

the  denial  of  the  royal  supremacy,  but  it  was  the  act  of 
proclamations  in  1539  which  first  gave  the  new  supreme 
head  something  of  the  power  of  independent  legislation 
which  had  belonged  to  the  pope.^  The  supreme  head  of 
the  church  was  not  to  be  subject  to  parliamentary  con- 
ditions in  the  exercise  of  his  supremacy;  and  the  ecclesi- 
astical sovereign  was  to  be  the  crown  in  council  and  not 
the  crown  in  parliament.  If  there  had  ever  been  a  crown 
in  convocation  other  than  the  pope's,  Henry  VIII  would 
assuredly  have  been  tempted  to  retain  and  enhance  the 
position,  and  to  make  the  crown,  rather  than  the  crown 
in  parliament,  the  link  between  church  and  state.  As 
it  was,  the  dichotomy  of  the  provinces  discouraged  the 
presence  of  the  crown,  and  the  vicegerent  was  not  at  home 
in  an  ecclesiastical  assembly.  Cromwell  had  no  successor 
in  that  capacity,  and  convocations  were  left  to  the  prelates 
and  proctors.  The  act  of  proclamations  itself  did  not 
prevent  the  six  articles  from  being  an  act  of  parliament 
and  not  a  royal  proclamation ;  and  in  1547  the  legislative 
independence  of  the  supreme  head  was  destroyed  by 
Somerset's  repeal  of  the  act  of  proclamations.^  The  crown 
in  parliament  would  not  tolerate  an  English  pope  in  council. 
Cromwell,  however,  represented  the  crown  elsewhere  than 
in  convocation,^  and  the  real  importance  of  his  position 

1  Offenders  were  to  be  tried  by  the  council  (34  &  35  Henry  VIII,  c.  8), 
which  was  thus  to  exercise  a  jurisdiction  similar  to  that  exercised  by  the 
later  high  commission ;  although  during  the  debate  on  the  bill,  promises 
were  given  that  nothing  should  be  done  under  it  contrary  to  an  act  of 
parliament  or  common  law  (Gardiner  to  Somerset  in  Foxe,  Acts  and 
Monuments,  vi.  43).  This,  however,  was  the  ecclesiastical  aspect  of  the 
statute  of  proclamations.  Its  general  purpose  was  to  revive  the  waning 
respect  for  royal  proclamations.  Such  importance  had  in  recent  years 
come  to  be  attached  to  parliamentary  statute  that  the  impression  had 
been  produced  that  other  forms  of  legislation  were  very  inferior  in 
authority,  if  they  were  law  at  all.  This  was  a  far  cry  from  the  time 
when  Edward  I  could  enact  all  his  legislation  in  council.  Henry  VIII 
did  not  attempt  to  recover  Edward's  comprehensive  sphere,  but  the 
statute  of  proclamations  gave  him,  within  the  shrunken  limits  of  his 
legislative  power,  the  same  authority  as  parliament  possessed  in  its  more 
extended  sphere. 

2  The  repeal  was  effected  by  a  single  sentence  in  i  Ed.  VI,  c.  12. 

3  It  is  notable  that  as  vicegerent  of  the  supreme  head  Cromwell  was 
by  31  Henry  VIII,  c.  10,  given  a  place  in  the  house  of  lords  on  the  right,  or 
ecclesiastical  side  of  the  throne,  and  above  the  archbishop  of  Canterbury. 


THE   CROWN  IN  PARLIAMENT  269 

in  parliament  was  due  to  the  fact  that,  while  the  crown 
had  a  recognized  place  in  the  parHament  chamber,  it  had 
none  in  the  house  of  commons.  Its  absence  accounts  for 
some  of  the  irresponsibihty  and  factiousness  of  the  com- 
mons during  the  fourteenth  and  fifteenth  centuries;  and 
when  Henry  VIII  began  to  look  for  a  lever  in  parhament 
against  the  prelates,  both  in  their  convocations  and  in  the 
parliament  chamber,  he  felt  the  need  of  some  agency  in  the 
house  of  commons.  This  was  the  part  designed  for  Crom- 
well from  his  first  entry  into  Henry's  service  in  1529. 
Wolsey's  intervention  in  1523  had  merely  brought  the 
Speaker,  but  not  the  commons  to  their  knees,  and  subtler 
methods  than  intimidation  were  required  to  maintain 
harmony  between  ambitious  monarchy  and  a  rising  house 
of  commons.  The  separation  had  never  been  complete, 
for,  while  the  commons  withdrew  from  the  parliament 
chamber  to  the  chapter  house,  they  were  often  accom- 
panied by  lords  of  the  council  and  of  parliament,  deputed 
to  give  them  the  benefit  of  their  wisdom  and  advice ;  often, 
too,  the  commons  were  directed  to  deliberate  in  some 
chamber  in  the  palace,  in  order  that  they  might  be  near 
the  lords  for  consultation.  But  stronger  bonds  were 
needed  than  deputations ;  and  harmony  between  crown  and 
country  could  best  be  secured  by  identifying  the  agents 
of  the  crown  with  the  representatives  of  the  constituencies. 
The  process,  however,  by  which  councillors  became  largely 
identified  with  elected  members  of  parhament  belongs  rather 
to  the  position  of  the  council  than  to  that  of  the  crown 
in  parliament.^ 

The  distinction  was  clearer  in  the  sixteenth  century 
than  it  is  to-day,  because  the  crown  was  then  little  more 
than  the  king,  while  the  council  was  only  a  body  of  advisers 
whose  advice  need  not  be  taken.  The  crown  did  not,  so 
to  speak,  consist  of  the  cabinet,  and  the  crown  in  parlia- 
ment was  manifest  in  the  very  personal  action  of  the  Tudors, 
The  practice  of  royal  commission  was  in  its  infancy;  and, 
although  the  expedient  was  adopted  to  save  Henry  VIII 

1  See  below,  pp.  295-7. 


270  THE  EVOLUTION   OF  PARLIAMENT 

from  the  pain  of  giving  a  personal  attendance  at  the  attaint 
ing  of  his  queens,  the  parHamentary  action  of  Tudo 
sovereigns  was,  as  a  rule,  immediate  and  direct.  Not  that 
the  sovereign  ever  pronounced  with  his  or  her  own  mouth 
the  decisive  phrase  le  roy  le  veult,  le  roy  s'avisera,  or  soi 
fait  comme  il  est  desire  ;  ^  and  the  notion  that  he  signec 
or  signs  acts  of  parliament  is  a  popular  superstition.' 
The  giving  or  withholding  the  royal  assent  was  not  quit( 
so  blunt  a  process ;  and  the  king  would  have  had  reason  tc 
complain  had  he  been  expected  to  make  up  his  mind  or 
the  merits  of  a  long  list  of  bills  awaiting  his  enactmem 
during  the  brief  interval  which  elapsed  between  the  reading 
out  of  their  titles  by  the  clerk  of  the  crown  and  the  pro- 
nouncement of  the  royal  decision  by  the  mouth  of  the  clerl 
of  the  parliaments.  The  king,  like  the  commons  anc 
other  "  estates  "  of  parliament,  needed  time  and  privac] 
for  deliberation,  which  was  impossible  in  pleno  parliamento 
where  decisions  were  announced,  but  were  not  taken;  anc 
just  as  the  commons  had  withdrawn  from  the  parliamen 
chamber  to  the  commons'  house,  so  the  king  decided  upoi 
his  action,  not  in  the  parliament  chamber,  but  in  an  adjoin 
ing  council-room.^  No  doubt  he  had  had  earlier  oppor 
tunities  of  acquainting  himself  with  the  contents  of  sucl 
bills  as  he  had  not  personally  inspired ;  but  his  final  deter 
mination  on  the  bills,  as  they  emerged  from  the  twc 
houses,  was  reached  in  secret  conclave  on  the  last  da^' 
of  the  session;  and  was  announced  by  the  clerk  after  the 
king,  commons,  and  other  "  estates  "  had  assembled 
pleno  parliamento  for  the  crowning  work  of  the  session.^ 


1  The  third  of  these  phrases  was  used  when  the  bill  was  what  we  shoul 
now  call  a  private  bill  (Hakewill,  Passing  of  Bills,  1641,  p.  78) ;  other  phrases 
were  used  for  the  royal  acceptance  of  money  grants. 

2  Palgrave  went  so  far  as  to  assert  that  "  signatures  are  never  found 
in  ancient  documents"  {Rep.  on  Petitions,  1833,  p.  21).  V^hen  the  kingi 
signed  bills,  he  signed  them  before  introduction;  but  these  were  ont] 
bills  affecting  the  property  of  the  crown,  which  cannot,  even  to-day,  b 
introduced  without  the  royal  consent.  A  bill  for  the  restitution  of  ai 
attainted  felon  or  traitor  had  to  be  signed  in  this  way  before  introduo 
tion,  because  its  passing  would  mean  the  crown's  loss  of  the  forfeited 
goods.     Cf.  Hunne's  case  in  Engl.  Hist.  Rev.,  July  1915,  p.  482. 

3  Now  called  ''  the  robing  room  "  (May,  Pari.  Practice,  ed.  1883,  p.  593). 
*  "  In  the  open  parliament "  is  Hall's  version   in   1529   [Chronicles, 

p.  763). 


THE   CROWN  IN  PARLIAMENT  271 

It  was  not  merely  on  this  last  day  of  the  session  or 
by  the  exercise  of  the  veto  that  the  crown  partook  of 
the  business  of  parliamentary  legislation.  We  have  seen 
Henry  VII  introducing  a  bill  with  his  own  hand,  seeking  to 
pass  another  without  consulting  the  commons,  and  drafting 
most  of  the  acts  of  his  parliaments  in  the  language  of  royal 
edicts.  The  commons  were  a  far  less  neghgible  quantity 
under  Henry  VIII,  at  any  rate  after  1529,  and  the  auto- 
cratic form,  at  least,  disappears  from  the  phraseology  of  the 
statute  book.  The  co-operation  of  lords  and  commons 
is  always  expressed  in  the  language  of  an  act,  and  parlia- 
ment is  always  alleged  as  its  authority.  The  king's 
"  remembrances  "  and  '*  considerations  "  are  veiled  behind 
the  less  personal  terminology  of  parliament.  It  was  Henry 
VIII's  policy  to  envelop  himself  in  parliament,  and  he 
did  it  with  such  success  that  the  crown  was  never  thence- 
forth able  to  divest  itself  of  its  parliamentary  robes.  He 
wove  parUament  like  a  garment  round  his  royal  carcase 
for  protection;  and  the  king-spun  constitution  of  the 
realm  was  all  the  closer  in  texture  because  parliament 
had  ever  been  an  outcome  of  the  crown.  Henry  VIII 
was  not  a  mere  member  of  parliament,  but  its  very  head; 
and  when  the  head  condescended  to  debate  the  six  articles 
it  confounded  all  the  members  by  its  learning.^  Parliament 
met  in  the  king's  palace;  its  rooms  were  allotted  by  the 
king's  chamberlain,  and  its  members  were  sworn  before 
the  king's  steward  or  his  deputies ;  ^  it  betrayed  in  all  its 
trappings  its  origin  as  a  feudal  court.  It  was  summoned, 
prorogued,  adjourned,  dissolved  by  the  king  or  his  ministers 
at  his  pleasure.  Its  clerks  were  the  king's  clerks,  and 
even  the  serjeant-at-arms,  who  attended  the  Speaker  of 
the  house  of  commons,  was  a  king's  Serjeant,  appointed 
by  him  and  removable  at  his  pleasure.  The  king's  attorney 
and  solicitor-general,  and  his  serjeants-at-law  attended 
the  house  of  lords,  not  as  the  servants  of  an  autonomous 
house,  but  as  the  servants  of  the  king,  doing  his  service  in 

1  Letters  and  Papers,  xiv,  i.  1040;  Pocock  {Burnet,  vi.  233)  prints 
"  God's  learning  "  for  "  his  learning."  \ 

2  D'Ewes,  Journals,  pp.  39-40. 


272  THE  EVOLUTION  OF  PARLIAMENT 

his  great  council  chamber. ^  The  Speaker  was  nominated 
and  paid  by  the  crown,^  though  the  nomination  was  veiled 
more  decently  than  that  of  bishops  after  the  second  act 
of  appeals;  and  the  subsequent  election  by  the  commons 
only  grew  more  real  than  the  election  of  a  bishop  by  his 
chapter  with  the  contest  over  Onslow's  election  in  1566 
and  the  success  of  the  commons  in  Lenthall's  case  at  the 
opening  of  the  Long  parliament.  The  lords,  as  befitted 
a  royal  council,  never  secured  even  the  pretence  of  a  power 
to  elect  a  presiding  officer,  who  could  only  preside  in 
the  absence  of  the  king;  and  to  this  day  the  lord 
chancellor  is  appointed  by  the  crown,  and  need  not  be  a 
peer,  except  as  a  matter  of  deference  to  the  historical 
fictions  on  which  the  lords  have  sought  to  build  their 
house.  The  whole  machinery  of  parliament  was  part  of 
the  permanent  machinery  of  the  crown  temporarily  applied 
to  the  purpose  of  holding  the  king's  high  court.  || 

Gradually    the    two    houses    secured    control    of    thisl! 
machinery,  but  this  control  has  been  less  perfectly  won  by' 
the  lords  than  by  the  commons,  who  could  never  be  over 
ridden   by  a   threat   to    double   their   numbers   by   royal' 
creation.     Neither   lords  nor   commons   could,  it  is  true, 
come  to  parliament  without  a  royal  summons;    but  whil 
the  crown  summoned  a  peer  by  name,  its  summons  to  th 
commons  was  addressed  to  communities,  who  could  choose 
what  members  they  pleased.     No  doubt  a  good  deal  of| 
pressure  was  brought  to  bear  at  different  times  upon  con-^ 
stituencies  to  elect  representatives  acceptable  to  the  crown ; 
but  this  pressure  was  of  little  avail  in  the  shires,  and  even 
in  the  boroughs  it  was  not  so  formidable  an  obstacle  to 
freedom  of  election  as  the  influence  of  the  county  magnates. 
The  crown  could  also  create  new  boroughs  by  charter ;  but 

1  When  Onslow  was  elected  Speaker  in  1566,  it  was  contended,  though 
unsuccessfully,  that  his  duty  as  a  serjeant-at-law  in  the  upper  house 
overrode  the  commons'  claim  on  him  as  their  Speaker  (D'Ewes,  pp. 
98,  121 ;  cf.  Elsynge,  p.  82). 

2  Tytler,  Edward  VI,  ii.  163;  Campbell's  Materials,  ii.  217.  His  fee  in 
1485  was  ^100;  but  in  1563  Speaker  Williams  writes  that  the  allowance 
the  queen  was  pleased  to  make  was  never  certain,  but  more  or  less  according 
to  the  length  of  the  parliament  (Cal.  S.  P.  Dom.,  Addenda,  i547-65> 
P-  535). 


THE   CROWN  IN  PARLIAMENT  273 

as  early  as  the  reign  of  Elizabeth  the  motive  for  new  creations 
was  rather  the  political  ambition  of  the  constituency  than 
the  desire  of  the  crown  for  **  king's  friends  "  in  the  house 
of  commons;  and  secretary  Wilson,  replying  to  a  petition 
for  parliamentary  representation  from  Newark  in  1579, 
remarked  that  the  government  thought  too  many  parlia- 
mentary seats  had  been  created  already,  and  was  con- 
sidering the  question  of  reducing  the  number  of  rotten 
boroughs.^  James  I  created  university  constituencies,^  but 
Charles  II's  letters  patent  to  Newark  seem  to  have  been  the 
last  occasion  upon  which  the  crown  increased  the  house 
of  commons  by  charter  instead  of  by  act  of  parliament. 

With  the  lords  it  was  different.  An  attempt  was  made 
in  1719  by  the  peerage  bill  to  limit  the  power  of  creation 
by  the  crown.^  It  failed,  and  was  not  repeated ;  and  while 
the  power  of  the  crown  to  modify  the  size  of  the  house  of 
commons  has  been  abolished,  its  power  to  create  peerages 
is  unlimited.  The  bishops,  too,  have  ever  been  in  practice, 
though  not  in  theory,  royal  nominees;  and  from  the 
Reformation  to  the  Revolution  the  royal  supremacy  over 
the  church  gave  it  great  control  of  the  house  of  lords. 
But  its  control  over  temporal  peers  diminished.  During 
the  Tudor  period  the  crown  could  compel  a  peer's  attend- 
ance; if  for  good  reasons  he  were  allowed  to  stay  away, 
he  had  to  seek  royal  licence  to  appoint  his  proxies,  and 
over  his  choice  the  crown  could  exercise  a  veto,*  The  crown 
could  also  prevent  an  unwelcome  attendance.  There  was 
no  law  requiring  the  crown  to  summon  any  one;  alien 
peers  were  not  summoned  by  Henry  Vll,^  nor,  apparently, 

1  Seep.  159  «. 

2  Both  universities  received  writs  for  James'  first  parliament,  but 
apparently  Cambridge  made  no  return.  James  conferred  a  similar 
privilege  upon  Trinity  College,  Dublin,  in  1613. 

»  Lecky,  i.  230-1. 

*  Lodge,  Illustrations,  i.  252-3;  cf.  Coftoni  Posthuma,  pp.  264,  267; 
Elsynge,  pp.  32,  119-20. 

6  For  instance,  Philibert  de  Chande,  the  leader  of  Henry  VII's  Breton 
contingent  in  1485,  who  was  created  earl  of  Bath,  was  never  summoned 
to  parliament;  nor  were  Louis  de  Bruges  and  John  de  Bruges,  who 
were  successively  earls  of  Winchester  (see  my  Henry  VII,  iii.  320). 
The  latter  "  resigned  "  his  earldom  in  1500  (Doyle,  Official  Baronage, 
iii.  700). 
T 


274  THE  EVOLUTION  OF  PARLIAMENT 

alien  bishops  by  Henry  VIII ;  ^  and  some  temporal  peers 
who  were  not  aliens  seem  to  have  been  ignored. ^  But 
custom  was  hardening  towards  the  creation  of  hereditary 
right,  and  in  the  reign  of  Charles  I  the  lords  laid  down 
the  doctrine,  which  Charles  disputed,  that  the  crown  had 
lost  the  power  of  preventing,  by  neglect  to  summon  or  by 
countermanding  the  summons,  a  peer  from  attending  the 
house  of  lords.  The  houses  in  the  seventeenth  century 
succeeded  in  reducing  the  crown^s  control  oi~1^ir^ersdnnd  \ 
to  the  creation  of  peers. 

They  also  succeeded  in  reducing  almost  to  nothing  the 
legislative  powers  of  the  crown  both  in  and  out  of  parlia- 
ment. Under  the  Tudors  the  crown  had  legislated  out  of 
parliament  by  means  of  proclamations,  and  in  parliament, 
not  only  by  the  negative  method  of  the  veto,  but  by  the 
positive  methods  of  introducing  and  amending  bills.  Henry 
VII  added  provisos  to  bills  when  giving  the  royal  assent, 
and  the  provisos  thus  incorporated  in  the  act  became  law 
without  any  consideration  of  them  by  lords  or  commons.^ 
Queen  Elizabeth  exercised  similar  powers  of  amendment 
on  one  occasion  at  least ,^  but  she  seems  to  have  been  the 
last  sovereign  who  did  so.  Parliament  retorted  on  the 
crown  the  limitation  of  speech  which  EHzabeth  is  generally, 
though  erroneously,^  supposed  to  have  imposed  on  the 
house  of  commons  by  the  mouth  of  lord-keeper  Puckering. 
"  Your  liberty  of  speech,"  he  is  misrepresented  as  saying, 
*'  consisteth  in  yea  or  nay."  The  liberty  of  the  crown 
in  legislation  was  reduced  to  a  like  dilemma,  from  which  the 

1  E.g.  Campeggio,  bishop  of  Salisbury  (1525-34),  and  John  de  Giglis, 
Silvester  de  Giglis,  Julius  de  Medici,  and  Jerome  de  Ghinucci,  bishops  of 
Worcester  between  1497  and  1534. 

2  E.g.  Robert,  lord  Ogle,  was  not  summoned  between  1529  and  1544 
(Round,  Studies  in  Peerage,  pp.  330  sqq.) ;  and  according  to  Chapuys 
Darcy  and  three  bishops  were  forbidden  to  attend  in  1534  {Letters  and 
Papers,  vii.  121).  Chapuys  is  very  unreliable  in  these  matters,  but  Elsynge, 
clerk  of  the  parliaments,  writing  as  late  as  1625,  says  :  "  Now  of  late 
they  which  are  in  the  king's  displeasure  have  had  their  summons,  but 
with  a  letter  from  the  lord  chancellor  or  lord  keeper  not  to  come,  but 
to  send  a  proxy"  {Parliaments,  ed.  1768,  p.  59). 

3  Rot.  Pari.,  vi.  182,  186-7,  4^0,  496. 
*  D'Ewes,  Journals,  p.  341&. 

^  See  J.  E.  Neale  in  Engl.  Hist.  Rev.,  xxxi.  128-37. 


THE   CROWN  IN  PARLIAMENT  275 

alternative  was  soon  removed.  Since  the  reign  of  Queen 
Anne  the  crown  has  lost  all  discretion  in  the  matter  of 
accepting  or  rejecting  bills  that  have  passed  the  two 
houses. 

The  disuse  of  the  royal  veto  was  not  so  serious  a  loss  as 
the  denial  of  the  right  of  the  crown  to  suspend  and  dispense 
with  the  law  when  made.  For  clearly  it  would  not  matter 
what  laws  were  made  if  the  crown  could  not  be  forced  to 
carry  them  out;  and  this  compulsion  was  the  hardest  of 
all  the  tasks  for  a  legislature  to  impose  on  an  executive. 
In  the  sixteenth  century  there  was  no  idea  of  any  such 
parliamentary  coercion  of  the  crown.  Parliament  alone 
could  make  laws,  but  the  crown  alone  could  carry  them 
out,  and  it  rested  entirely  with  the  crown  to  determine 
when,  where,  how,  and  to  what  extent  the  laws  should  be 
enforced.  Parliament  passed  the  act  of  six  articles  in 
1539;  it  was  no  infraction  of  the  constitution,  as  then 
understood,  when  the  crown  abstained  for  a  year  from 
enforcing  its  doctrine.^  No  penalties  would  have  been 
incurred  by  any  one  had  the  crown  and  the  church  in 
Mary's  reign  refrained  from  burning  a  single  heretic,  not- 
withstanding the  de  hceretico  comburendo  statutes  which 
parliament  had  re-enacted.  In  1559  the  act  of  supremacy 
enabled  the  crown  to  impose  the  oath  of  supremacy;  it 
was  considered  prudence  when  Elizabeth  refrained  from 
exacting  that  oath  from  the  judges  and  from  Englishmen 
north  of  the  Trent.  Parliament,  indeed,  had  hitherto  limited 
its  action  to  two  objects :  it  had  restrained  the  crown  from 
moving  in  directions  of  which  it  disapproved;  it  had  em- 
powered the  crown  to  move  in  directions  of  which  it  approved ; 
but  it  had  not  compelled  the  crown  to  move  at  all. 

A  legislature  cannot,  however,  ensure  the  administration 
of  its  own  laws  unless  it  controls  the  executive  which  admin- 

1  There  are  no  penalties  in  the  act  of  six  articles ;  it  is  simply  declaratory, 
like  Henry  VIII's  act  of  supremacy.  But  common  law  and  statute  law 
already  provided  penalties  enough  for  heresy ;  and  the  "  bloodiness  "  of  the 
"six  articles  "  merely  consisted  in  the  doctrinal  direction  they  gave  to  general 
powers  of  persecution  with  which  Protestants  themselves  were  loth  to 
dispense. 


276  THE  EVOLUTION  OF  PARLIAMENT  I 

isters  them;  and  judgement  is  futile  without  execution. 
If  the  executive  is  to  judge  when  and  whether  there  shall 
be  execution,  the  legislature  has  little  part  in  government 
unless  it  controls  the  executive.  There  can  be  no  real 
separation  of  powers  in  a  self-governing  community,  and 
the  Long  parliament,  early  in  its  career,  realized  the  futility 
of  mere  legislation.  The  fundamental  issue  was  raised 
when  parliament,  in  the  Grand  Remonstrance,  demanded 
control  of  the  king's  choice  of  ministers  and  asserted  their 
responsibility  to  it,  while  Charles  retorted  that  government 
was  nothing  pertaining  to  subjects.^  Occasions  upon  which 
it  might  be  necessary  to  suspend  or  dispense  with  particular 
laws  will  never  be  lacking  in  any  community,  however 
perfect  its  laws  or  peaceful  its  people;  but  the  judge  of 
these  occasions  must  be  the  maker  of  the  laws.  In  other 
w^ords,  the  maker  of  the  laws  must  be  the  maker  of  the 
government. 

In  the  sixteenth  century  the  crown  in  council  was  the 
government,  and  the  crown  in  parliament  was  the  maker 
of  the  laws.  Harmony  was  effected  by  the  predominance 
of  the  crown  in  both.  The  subjection  of  parliament  to 
Henry  VII  was  much  more  patent  than  its  subjection  to 
his  son ;  but  the  relative  positions  of  crown  and  parliament 
under  Henry  VIII  have  often  been  regarded  as  the  most 
striking  illustrations  of  the  unconstitutional  character 
of  Tudor  rule.  Yet  the  real  gravamen  of  the  charge  of 
unconstitutional  government  against  Henry  VIII  is  not 
that  he  went  about  to  break  parliaments,  but  that  he  broke 
the  bonds  of  Rome.  It  is  difficult  to  discover  anything 
unconstitutional  in  his  relations  with  his  parliaments;  no 
king  had  for  a  century  relied  upon  parliament  to  the  extent 
that  he  did  after  1529,  and  none  did  so  again  until  the 
Revolution.  There  was  nothing  unconstitutional  or  unpre- 
cedented in  his  frequent  presence  in  its  midst,  in  its  releasing 
him  from  his  debts,  enabling  him  to  decide  between  rival 
claimants  to  the  succession,  or  to  legislate  within  his  proper 
sphere  by  means  of  proclamations.  But  it  was  uncon- 
1  Gardiner,  Select  Documents,  ed.  1889,  pp.  129,  157,  171,  285. 


PARLIAMENT   IN    1742. 


THE   CROWN  IN  PARLIAMENT  277 

stitutional  for  parliament  to  deprive  the  pope  of  his  spiritual 
jurisdiction,  to  dissolve  royal  marriages,  and  pass  the  act 
of  six  articles;  or  rather,  these  things  were  only  con- 
stitutional in  the  hght  of  a  theory  of  parliamentary  omni- 
competence  which  had  not  been  recognized  before,  and  was 
repudiated  by  older  jurisdictions.  It  was  Henry's  exten- 
sion, and  not  his  restraint,  of  parliament  that  makes  his 
rule  unprecedented.  The  claims  of  parliament  to  deal  with 
the  church  were  as  much  a  usurpation  as  any  papal 
pretension;  and  it  was  only  the  success  of  the  revolution 
that  made  its  principles  constitutional. 

Those  principles  were,  however,  established,  and  the  crown 
in  parliament  became  an  undisputed  sovereign  with  an 
unrestricted  sovereignty.  The  emphasis  was  on  the  crown, 
but  the  crown  sank  beneath  its  weight.  One  child  and  two 
women,  despite  Elizabeth's  vigour,  could  not  countervail 
the  emphasis  of  parliament;  and  before  1603  distraction 
was  obvious  in  the  partnership.  The  maker  of  the  laws 
was  no  longer  at  one  with  their  executor.  A  century 
of  struggle  under  the  Stuarts  resulted  in  the  victory  of 
the  legislature.  The  prize  was  the  control  of  the  adminis- 
tration, and  the  crown  in  parliament  became  to  all  intents 
and  purposes  the  council  in  parliament,  a  council  consisting 
of  members  of  parliament,  owing  to  parliament  their  position 
in  council,  and  responsible  to  parliament  for  their  conduct 
of  affairs. 


CHAPTER  XIV 

THE  COUNCIL   IN   PARLIAMENT 

The  king's  council  in  parliament  has,  since  the  reign  of 
Edward  I,  been  the  pivot  of  the  English  constitution,  and 
to-day  it  is  a  distinguishing  feature  of  British  systems  of 
government  that  the  executive  should  be  part  and  parcel 
of  the  legislature.  The  novelty  of  the  cabinet  does  not 
consist  in  the  link  which  it  forms  between  the  crown  and 
parliament,  but  in  the  fact  that  by  its  means  parliament 
controls  the  crown.  The  king's  council  had  always  formed 
a  similar  link,  but  bj^  its  means  the  crown  controlled  the 
parliaments.  It  is,  however,  modern  phraseology,  mis- 
applied to  most  of  our  constitutional  history,  to  speak  of 
links  between  parliament  and  the  crown.  We  might  as 
well  speak  of  links  between  man's  mind  and  man;  man  is 
not  man  without  a  mind,  and  parliament  was  no  parliament 
without  the  crown.  Metaphors,  however,  and  especially 
the  metaphors  of  mechanics,  fail  to  express  the  meaning  of 
human  associations.  It  is  well  to  remember  that  councils 
and  parliaments  consist  of  men,  and  that  when  a  man  is 
a  member  of  a  council  and  of  a  parliament  he  is  much 
more  than  a  link  between  the  two  assemblies.  Identity 
cannot  be  constituted  by  any  amount  of  connexion,  and 
much  of  the  difficulty'  of  understanding  medieval  history 
arises  from  the  habit,  to  which  the  constitutional  historian 
is  prone,  of  regarding  the  different  activities  of  the  same 
men  as  distinct  and  definite  institutions.  A  council  is 
merely  a  body  of  men  doing  certain  things  "  in  council  " ; 
a  parliament  is  often  little  more  than  the  same  men  doing 
somewhat  different  things  '*  in  parliament " ;  and  the 
difference  between  a  council  and  a  parliament  lies  for  the 

278 


THE   COUNCIL   IN  PARLIAMENT  279 

most  part  in  the  different  things  they  do  and  their  different 
modes  of  action.  A  parhament  is  at  first  no  more  than 
the  counsellors  of  the  king  sitting  in  a  particular  kind  of 
session  called  a  parliament.^ 

A  like  anachronism  of  differentiation  led  Coke  to  multiply 
Edward  Ts  council  by  four,  and  to  crystallize  its  different 
functions  into  so  many  different  bodies.     But  while  it  seems 
clear  that  Edward  I  had  only  one  council,  Edward  II  had 
two,2  one  which  was  chosen  by  him  and  was  called  his 
secret  or  privy  council,  and  one  which  was  forced  upon  him 
by  his  baronage  and  was  called  the  magnum  concilium. 
The  two  forms  of  council  represented  two  rival  parties, 
and  their  place  in  the  constitution  rose  and  fell  with  the 
varying  fortunes  of  the  king  and  the  lords  ordainers.     No 
doubt  both  parties  were  working  on  the  common  foundation  of 
a  council  without  an  adjective ;  but  the  barons  were  seeking 
to  make  it  magnum  and  the  king  to  keep  it  secretum,  and 
there  was  little  that  was  common  to  their  finished  products. 
One  party  produced  the  peerage,  the  other  the  privy  council. 
The  council  has  been  the  cockpit  of  contending  factions 
and  constitutional  principles.     Which  was  to  be  its  master, 
the  king  or  the  barons,  or,  last  of  all,  the  commons  ?     Upon 
that  issue  it  would  depend  whether  the  council  became  a 
privy  council,  a  magnum  concilium,  or  a  modem  cabinet, 
and  England  an  autocracy,  an  oligarchy,  or  a  democracy. 

The  contest  is  fought  in  the  open  under  Edward  II  and 
sometimes  on  the  field  of  battle.  But  Edward  III  was 
strong  enough  to  prevent  open  schism  in  the  government, 
and  the   strife  was   conducted  behind   closed  doors.     Its 

1  Maitland  calls  it  a  "  parliament  of  the  council  "  {Memoranda,  p.  Ixxx) . 

*  Prof.  Baldwin  rather  minimizes  the  distinction  between  the  magnum 
concilium  and  the  privy  council,  and  contends  that  one  was  merely  a  full, 
and  the  other  a  secret,  session  of  the  same  body.  But  it  seems  difficult  on 
this  theory  to  account  for  the  definite  article  in  the  term  le  grand  conseil 
which  we  find  in  Edward  II's  reign,  or  for  the  description  of  Wykehara 
as  capitalis  secreti  consilii  ef  magni  consilii  guhernator  in  1377  {Rot.  Pari., 
iii.  388a) ;  although  the  fact  that  he  held  these  two  offices  and  was  also 
at  the  same  time  keeper  of  the  privy  seal  indicates  the  common  element 
in  these  councils.  It  is  perhaps  significant  of  the  growing  importance 
of  the  privy  seal  that  Wykeham  should  be  its  keeper,  after  having  been 
chancellor  ten  years  before. 


28o  THE  EVOLUTION  OF  PARLIAMENT 

history  is  therefore  obscure,  and  we  can  say  httle  more 
than  that  the  struggle  was  not  one  for  the  control  of  a 
definite  institution,  but  one  to  define  a  vague  claim  on  the 
part  of  the  barons  to  give  counsel  to  the  crown  and  on  the 
part  of  the  crown  to  select  its  own  advisers.  Nor  was  it 
even  so  simple  as  that;  for  the  actions  of  the  crown  were 
multifarious,  and  a  right  to  advise  it  in  some  matters  dicM 
not  involve  the  right  to  advise  it  in  all.  The  issue  cannol 
be  understood  without  reference  to  the  gradual  differentiation 
of  the  functions  of  government.  It  seems  clear  that  the 
magnates  established  their  claim  to  be  the  council  of  the 
crown  for  all  matters,  legislative  or  judicial,  involving  an 
alteration  or  interpretation  of  the  law  of  tenure,  at  least 
of  freehold  tenure ;  and  such-  petitions  were  regularly  dealt 
with  by  legislation  in  parliaments  containing  a  magnum 
concilmm,  or  were  referred  for  judicial  decision  coram  magna 
conciUo  out  of  parliament.^  With  regard  to  matters  oi 
policy  and  administration  the  magnates  were  less  successful. 
They  did,  indeed,  succeed  in  reducing  the  status  of  the 
judges  in  the  council,  both  in  and  out  of  parliament,  to 
that  of  advisers  without  a  vote;  and  the  principle  was 
ultimately  accepted,  and  even  asserted,  by  the  judges 
themselves  that  they  were  "  of  council  to  the  king  "  only 
for  legal  and  not  for  political  business.^  The  magnates 
also  made  efforts  to  exclude  the  clerical  element  from  the 
council ;  ^  but  they  were  naturally  unsuccessful  in  their 
attempts  to  make  the  secret,  continual,  or  privy  council 
of  the  king  a  great  council  of  magnates,  just  as  their  pre- 
decessors had  failed  in  the  reign  of  Henry  II  to  prevent 
the  conversion  of  the  curia  regis  from  an  occasional  assembly 
of  turbulent  barons  into  a  regular  body  of  expert  justices. 
They  might  be  consiliarii  nati  of  the  crown,  but  it  remained 
with  the  crown  to  say  when  it  wanted  their  counsel;  and 
the  magna  concilia  of  the  fifteenth  century  were  always 

1  Cf.  Baldwin,  pp.  279-80,  325,  334.     Possibly  the  "  law  of  the  land  " 
meant  the  "  landlaw." 

2  Nicolas,  Pvoc.  of  Privy  Council,  i.  76,  iii.  151,  v.  76-9,  268-9;  Baldwin, 
pp.  76-8,  205. 

3  Baldwin,  p.  83. 


THE   COUNCIL  IN  PARLIAMENT  281 

specialiter  congregata,  while  the  secret  council  was  continuum, 
and  needed  no  special  summons. ^ 

This  secret  or  continual  council  took  more  or  less  definite 
form  in  the  reign  of  Richard  II.  Nicolas's  Proceedings 
begin  in  1386,2  and  a  Journal  of  the  council  has  lately 
been  found  for  1392-3.^  This  council  had  a  clerk  of  its 
own,  charged  to  keep  its  minutes,*  and  Richard  II  relied 
on  it  to  control  his  unruly  uncles  and  enable  him  to  develop 
a  preliminary  sketch  of  the  "  new"  monarchy.  His  failure 
produced  a  reaction  towards  a  magnum  concilium,  and 
grands  conseils  become  frequent  with  the  accession  of 
Henry  IV. ^  It  is  possible  to  regard  the  council  as  a  single 
institution,  of  which  the  grand  conseil  was  an  occasional 
expansion,  and  the  privy  council  a  more  continuous  con- 
traction ;  ^  but  it  is  obvious  that  these  expanded  and  con- 
tracted sessions  were  tending  to  form  distinct  institutions. 
In  1377  Wykeham  was  described  as  capitalis  secreti  et 
magni  consilii  guhernator ;  a  room,  in  Westminster  Palace 
was  called  camera  magni  consilii,  and  we  find  the  definite 
article  in  le  grand  conseil  and  the  seigneurs  du  grand  conseil 
du  roy?  We  can  no  m.ore  regard  the  great  and  privy 
councils  as  a  single  institution  merely  because  the  greater 
contained  the  less,  than  we  can  identify  parliament  with 
the  council  because  a  session  of  the  council  was  the  core 
of  every  parliament;  and  we  must  not  deny  a  distinction 
because  it  is  hard  to  draw. 

Discrimination  is  not,  indeed,  easy  as  regards  size,  per- 

1  Nicolas,  Proc.  of  Privy  Council,  iii.  322,  iv.  262. 

*  These  Proceedings  do  not  represent  a  register  or  regular  series  of 
any  kind ;  and  Nicolas's  volumes  are  for  the  most  part  made  up  of  scattered 
notes  collected  from  many  sources.  He  prints,  however,  a  "  council-book  " 
extending  from  142 1  to  1435,  and  a  collection  of  original  minutes  to 
1460.  Between  1435  and  1539  there  is  another  gap  in  the  council-books, 
which  are,  however,  fairly  continuous  from  1539  onwards. 

*  Baldwin,  pp.  389-90. 

*  There  are  "  clerici  "  of  the  council  in  Edward  Ill's  reign,  but  they 
are  probably  "  clerics,"  rather  than  clerks,  of  the  council,  in  contrast  with 
the  "  lords  "  and  "  bachelors  "  of  the  council. 

5  Nicolas,  i.  102,  107,  144,  156,  180. 

*  The  secret  councD  is  often  called  the  privy  council  in  Henry  VII's 
reign;  but  the  phrase  en  prive  conseil  which  occurs  in  1381  (Baldwin, 
p.  125)  means  "  in  private  conclave,"  and  not  "  in  the  privy  council." 

'  Baldwin,  p.  369;  Rot.  Pari.,  iii.  388a;  Nicolas,  i.  180,  iii.  223. 


282  THE  EVOLUTION  OF  PARLIAMENT 

sonnel,  or  functions.  We  have  record  of  a  grand  consei 
consisting  of  ninety -two  members ;  ^  but  another  containec 
but  thirty-three,^  while  a  council  which  is  not  called  greai 
numbered  as  many  as  thirty-two.^  The  same  variety  of 
"  estates  " — dukes,  bishops,  abbots,  earls,  barons,  bannerets 
bachelors,  knights,  esquires— might  be  represented  in  th( 
great  and  in  the  privy  council ;  *  both  were  summoned  undei 
the  privy  seal,  they  had  the  same  clerk,  and  such  recordi 
as  were  kept  were  on  indiscriminate  files. ^  Nor  were  thei] 
functions  more  clearly  distinct.  That  of  a  grand  consei 
was  probouleutic,  and  in  the  fifteenth  century  it  seems 
generally  to  have  been  called  to  consider  whether  a  parha 
ment  was  necessary  or  not.  In  1389  a  larger  council  thai 
usual  advised  the  summons  of  parliament.^  In  February 
1400  a  great  council  taxed  itself  in  order  to  avoid  a  parlia^ 
ment  and  taxing  the  common  people.'  A  few  months  later 
another  great  council  considered  whether  it  was  possible  to 
declare  war  without  consulting  parliament,  and  diverse 
views  were  expressed.^  In  1430  a  great  council  agreed 
that  a  parliament  should  be  held,  and  in  1432  a  great  council, 
sitting  in  the  parliament  chamber  at  Westminster,  presented 
a  petition  relating  to  taxation,  tallages,  and  the  war  with 
France.^  In  1433  a  great  council  sat  in  the  green  chamber 
at  Westminster  (where  another  council  sat  in  1437  without 
being  great),  and  we  find  a  distinction  drawn  between  the 
king's  great  council  in  parliament  and  the  king's  great 
council  out  of  parliament.^^    Bedford  in  1434  speaks  of  his 

1  Nicolas,  vi.  290-1. 

2  Ibid.,  I.  102;  the  conseil  mentioned  [ibid.,  i.  144)  seems  to  have 
been  grand,  although  it  had  only  twenty- three  members. 

3  Ibid.,  ii.  7. 

*  Baldwin,  p.  121;  Nicolas,  i.  18,  59,  100,  102,  144,  156,  237,  ii.  85-9, 
98-9,  156,  iv.  pp.  xxxv-vi,  Ix,  Ixvi,  262,  v.  64-5,  vi.  214-16,  290-1,  298, 
333-4,  339-41. 

^  Council  records  were  "filed,"  chancery  records  enrolled;  one  of  the 
objections  to  the  council  was  that  its  records  were  not  enrolled,  and 
could  not,  therefore,  be  "  counter- rolled,"  or  controlled,  "comptroller" 
being  the  English  for  "  contrarotulator." 

®  Nicolas,  i.  17;  cf.  Rot.  Pari.,  ii.  146. 

'  Nicolas,  i.  102,  107.  ^  ii,id,,  i.  144. 

*  Ibid.,  iv.,  Chron.  Cat.,  pp.  x-xi,  xxxvi. 
1®  Ibid.,  iv.  105,  185-6,  V.  153. 


THE  COUNCIL   IN  PARLIAMENT  283 

ervices  "  as  well  in  your  said  parliament  as  in  your  great 
ouncil,"  and  in  1430  his  letters,  directed  "  al  consilio  privato 
egis,"  distinguish  between  it  and  "  magno  concilio  speci- 
.liter  congregato."  ^  In  1435  a  great  council  at  Sheen, 2 
onsisting  apparently  of  only  twenty-two  members,  nearly 
,11  peers,  discussed  the  Council  of  Basle,  relations  with 
♦'ranee,  and  other  matters.  In  October  1454  fourteen  bishops, 
wo  dukes,  eight  earls,  and  seventeen  barons  were  sum- 
aoned  to  a  great  council  (thirteen  more  were  summoned 
iter)  which  drew  up  ordinances  to  regulate  the  king's 
lOusehold.^  To  another  great  council  next  year  there  were 
ummoned  eighteen  bishops,  twenty-four  abbots  and  priors, 
Lve  dukes,  nine  earls,  the  prior  of  St.  John  of  Jerusalem, 
nd  thirty-five  barons.*  This  list  well-nigh  exhausted  the 
•eerage,  and  few  parliaments  contained  as  many  as  the 
inety-two  who  were  summoned  to  this  great  council. 
Larly  in  Henry  VI's  minority  it  was  asserted  that  the 
overnment  appertained  to  the  lords  spiritual  and  tem- 
poral assembled  in  parliament,  in  the  great  council,  or  in 
tie  continual  council ;  ^  and  on  the  eve  of  the  Wars  of  the 
LOses  the  great  council  was  little  more  than  the  "  house  " 
f  lords  out  of  parliament.^  The  knights  and  esquires, 
rho  figured  largely  in  the  great  councils  of  early  Lancas- 
dan  years,  had  disappeared.'  The  great  council  had 
rown  at  once  both  greater  and  less  comprehensive,  and 
tie  omission  of  commoners  was  outweighed  by  including 
early  the  whole  of  "  the  peerage."  The  wheel  had  come 
oil  circle,  and  had  brought  the  great  council  back  to  the 
oint  at  which  it  stood  in  1258  and  1311.  It  was  the  old 
Iternative,  baronage  or  the  crown,  a  great  or  a  privy 
ouncil. 

Thirty  years  of  civil  war  disposed  of  the  claims  of  the 
reat  council  to  govern   England,   and   then   the   Tudors 

1  Nicolas,  iii.  322,  iv.  225.  ^  Ibid.,  v.  64-5. 

3  Ibid.,  vi.  216-23.  *  ^^«'^-  vi.  290-1.  ^  Ibid.,  iii,  233. 

«  This  assimilation  was  helped  by  the  narrowing  of  the  "  peerage." 
here  was  a  broad  distinction  between  "  the  great  council  "  and  the  "  peers 
[  the  land  "  in  1352  {Rot.  Pari.,  ii.  245). 

'  In  1455,  however,  one  or  two  knights  or  esquires  were  summoned 
om  each  county  to  attend  a  council  {ibid.,  vi.  339-41). 


284  THE  EVOLUTION  OF  PARLIAMENT 

created  a  real  and  lasting  privy  council.     This  was  the  work 
of  Henry  VIII  and  not  of  his  father.     Henry  VII's  council 
is  an  enigma ;  once  or  twice  at  least  he  called  a  great  council, 
in  which  appointments  were  made  and  war  was  discussed 
with  France.     Of  a  privy  council  no  mention  has  been 
found,  and  it  might  seem  that  his  council  was  simply  a 
number  of  men  whom  the  king  consulted  as  individuals  if 
and  when  and  how  he  pleased.     Yet  there  were  "  council- v> 
times  " ;  and  a  president  of  the  council,  whose  office  is  com-| 
monly  dated  from  1530,  existed  in  1499  in  the  person  off 
Fitzjames,  Bishop  of  London,  and  in  1506  in  that  of  the-; 
notorious  Edmund  Dudley. ^    It  may  be  that  Henry  VIII 
felt  his  monarchy  to  be  too  new  to  risk  giving  it  a  master 
in  the  shape  of  an  organized  council;    he  needed  advice, 
but  he  did  not  want  control,  and  he  preferred  the  private 
advice  of  a  minister  to  that  of  a  council  meeting.     At  any 
rate,  the  organization  of  the  privy  council  seems  to  date  from 
1520.     Henry  VIII  had,  indeed,  a  council  from  his  accession, 
but  it  appears  to  have  been  a  loose  and  unwieldy  affair  until 
Wolsey  superseded  it  for  most  practical  purposes.     In  1520, 
however,  the  king  selected  twenty  of  its  members  to  attend 
his  royal  person ;    and  of  these  twenty  ten  were  to  **  give 
continual  attendance  in  the  causes  of  his  said  council,  unto ,y. 
what  place  soever  his  highness  shall  resort."  ^     This  wasf 
only  an  outline,  which  was  not  filled  in  until  after  Wolsey's 
fall,  and  the  inner  ring  of  ten  does  not  correspond  with  the 
later  organization  of  the  council.     But  twenty  remained 
the  average  number  of  privy  councillors  under  the  Tudors, 
who  were  clearly  marked  off  from  the  "  ordinar}/  "  council.^ 

1  Cal.  Patent  Rolls,  Henry  VII,  ii.  471.  The  obscurity  surrounding  the 
council  is  illustrated  by  the  fact  that  this  detail  in  Dudley's  biography 
remained  unknown  until  the  publication  of  this  volume  of  the  Patent 
Rolls  in  1 91 6. 

2  Nicolas,  vii.  pp.  v-vi. 

3  Councillors  not  sworn  of  the  privy  council  are  said  to  have  been 
members  of  the  concilium  oydinarium,  a  phrase  unknown  apparently  in 
the  Middle  Ages  (Baldwin,  p.  112),  and  perhaps  invented  by  Sir  E.  Coke. 
Cf.  Sir  R.  Wingfield's  remarks  :  "  It  is  above  tvyenty-four  years  since  I 
was  first  sworn  of  the  king's  council,  and  after  of  his  private  council, 
being  his  vice-chamberlain,"  and  "  I  have  been  sworn  of  his  council 
above  twenty  years  and  of  his  privy  council  above  fourteen  years" 
{Letters  and  Papers  of  Henry   VIII,  vii.    1525,  viii.  225).     The  "'' 


I 


THE   COUNCIL   IN  PARLIAMENT  285 

he  grand  conseil  sank  beneath  the  weight  of  England's  grand 
onarque. 

When  it  was  averred  in  1427  that  the  government  of 
ngland  (during  a  royai  minority)  appertained  to  the  lords 
)iritual  and  temporal,  in  parliament,  great  council,  or 
)ntinual  council  assembled,  the  varying  form  of  the 
;semblies  was  clearly  regarded  as  a  mere  matter  of  detail, 
)mpared  with  the  essential  identity  of  their  constituency; 
id  the  sole  advantage  of  a  great  over  the  privy  council 
•nsisted  in  the  weight  and  wisdom  of  a  multitude.  The 
atters  discussed  in  great  councils  were  also  discussed, 
id  could  be  decided,  in  privy  councils.  When  the  great 
uncil  advised  the  summons  of  parliament,  it  was  not 
e  great  but  the  privy  council  which  instructed  the  privy 
al  to  move  the  lord  chancellor  to  issue  the  writs;  and 
could  have  done  so  without  a  great  council  at  all.    There 

no  principle  of  discrimination  between  the  councils  of 
enry  VI.  The  abeyance  of  monarchy  undermined  the 
undations  of  privy  councils,  just  as  its  revival  under  the 
idors  proved  fatal  to  great  councils.  "  Great "  and 
privy  "  are,  in  fact,  simply  expressions  of  aristocracy  and 
onarchy  in  terms  of  the  council.  The  distinction  is  only 
arked  while  the  struggle  is  even,  as  it  was  under  Henry  III 
d  Edward  II.    The  predominance  of  over-mighty  subjects 

the  fifteenth  century  disintegrates  the  privy  council,  and 
e  triumph  of  a  Tudor  king  reduces  the  great  council  to 
nullity.     The  council  under  Henry  VI  grew  so  great  and 

diffuse  that  it  lost  all  specific  gravity,  and  the  lack  of 
ntral  governance  led  naturally  to  local  anarchy  and  civil 
ir.  It  was  the  failure  of  conciliar  government  in  the 
teenth  century  that  made  straight  the  path  for  personal 
onarchy  in  the  national  state  as  well  as  in  the  catholic 
urch. 

msel  learned  in  the  law  "  never  formed  a  council ;  they  were  simply 
^  legal  members  of  the  council.  The  commune  concilium  is  still  more 
isive;  in  Magna  Carta  it  probably  means  "common  advice,"  but 
lomas  Kent  is  said  to  be  described  as  "  clericus  communis  consilii 
tnini  regis "  on  the  Coram  Rege  roll,  30  Heniy  VI,  m.  8  (Vernon 
[rcourt.  His  Grace  the  Steward,  p.  385  «.). 


286  THE  EVOLUTION  OF  PARLIAMENT 

Some  discussion  of  the  king's  council  was  a  necessary 
prelude  to  any  examination  of  the  position  of  the  king's 
council  in  parliament.     The  question  is  obscure,  because 
the  position  is  involved  :   habet  enim  rex  curiam  suam  h 
consilio  stw  in  parliamentis  suis.  But  there  is  no  doubt  aboui 
the  immanence  of  the  council  in  parliament,  and  the  historj 
of  the  conflict  between  executive  and  legislative  is  more  pre 
cisely  the  process  of  determining  what  the  council  can  do  by 
itself  and  what  it  can  only  do  in  parliament.     It  may  help 
us  if  we  remember  that  when  we  speak  of  parHament  doing 
anything  at  all,  we  are  employing  what  is  perhaps  the  most 
convenient  fiction  in  the  constitution.     It  is  a  figure 
speech  like  that  employed  by  Americans  when  they  s 
that  "  congress  "  does  this,  that,  or  the  other,  or  by  W 
leyans  when  they  speak  of  "  conference  "  settling  the  aff; 
of  their  community.     Really,  it  is  certain  people  in  parli 
ment,  in  congress,  in  conference,  who  do  these  things ;  a; 
the  association  of  parliament  with  the  active   voice  is 
modem   development.     In  the  middle   ages    parhament 
always  passive  :    the  king  holds  a  parliament,  summons 
parliament,  and  does  many  things  in  and  to  a  parHamen' 
Others  besides  the  king  may  also  do  things  in  parliament,  buj 
parHament  itself  does  nothing ;  it  does  not  even  grant  tax 
The  "  estates  ''  tax  themselves  in  parliament,  but    par 
ment  does  not  tax  them.^    Justice  is  done  and  law  is  ma 
in  parliament;    but  it  is  the   king  in   council  who  judge? 
and  ordains.     In  course  of  time  the  reality  becomes  a  form 
the  petition  of  the  commons  determines  the  act  of  the  kin^ 
in    parliament,    and   inertia    is    transmuted    into    energy 
Parliament,   however,    remained   a   convenient    ambiguit} 

1  It  is  a  fundamental  though  gradual  change  when,  during  the  fifteentt 
and  sixteenth  centuries,  taxes,  instead  of  being  several  grants  severall] 
made  by  different  estates  in  parliament,  take  a  legislative  form,  anc 
derive  their  sanction,  not  from  the  good-will  of  the  givers,  but  from  th< 
sovereignty  of  the  legislature;  and  there  is  no  better  illustration  o 
(a)  the  amalgamation  of  the  estates  into  the  state,  and  (6)  the  consequen 
growth  of  the  sovereignty  of  parliament.  Taxation  became  a  part  o 
positive  law,  and  it  was  against  this  "  imposition  "  that  the  Americai 
colonists,  reverting  to  medieval  ideas,  rebelled.  Prof.  Mcllwain's  criticisn 
of  the  sovereignty  of  parliament  is  based  on  the  same  idea  (see  History 
iii.  162-4). 


1 


THE   COUNCIL   IN  PARLIAMENT  287 

for  the  crown  in  parliament,  the  lords  in  parliament,  the 
ommons  in  parliament,  as  well  as  for  any  combination 
3f  the  three ;  and  it  is  more  decent  to  say  that  the  parlia- 
nent  act  of  191 1  was  passed  by  parliament  than  that  it  was 
iictated  by  a  majority  in  the  house  of  commons. 

Parliament  in  the  middle   ages  was,  therefore,  a  set  of 

conditions  under  which  men  acted  rather  than  itself  the 

igent.     The  atmosphere  was  that  of  a  royal  and  feudal 

ourt,  held  in  the  "  hall  "  of  a  king's  palace  with  its  precincts 

narked  by  the  "  verge  "  of  the  king's  lord  steward.     The 

presence  of  the  king's  council  was  essential  to  the  curia. 

There  were  endless  councils  without  a  parliament;    there 

pould  be  no  parliament  without  a  council.     The  council 

W2ls  the  first  of  the  constituent  elements  in  parliament; 

ind  it  is  very  difficult  to  say  at  what  point  any  other  element 

)ecomes  essential.     The   earliest    "  Rolls  of  Parliaments  " 

ire  not  concerned  with  the  doings  of  an  elected  or  a  repre- 

entative  assembly,  and  the  acts  of  councils  continue  to  be 

ntered  on  the  **  Rolls  of  Parliaments  "  down  at  least  to 

371,  and  for  two  generations  later,  so  far  as  the  council 

l^ras   determining  matters  referred  to  it  by  parliament.^ 

ndeed,  one  of  the  reasons  why  council  records  do  not  begin 

Intil  the  reign  of  Richard  II  is  that  councils  and  parlia- 

lents  had  not  been  clearly  enough  differentiated  to  require 

ifferent  kinds  of  records.     The  whole  of  Edward  I's  original 

^ork  as  a  legislator  was  done  in  council  before  he  summoned 

is  model  parliament   of   1295;    and   his   successors   con- 

fnued  for  more  than  a  century  to  enter  on  the  parliament 

dIIs,  which  always  remained  in  the  custody  of  the  council,^ 

1  Baldwin,  pp.  107,  386;  cf.  Rot.  Pari.,  ii.  304,  iv.  334,  506.  The  council 
so  used  the  rolls  of  chancery  and  of  the  exchequer  for  recording  its 
roceedings.  It  had  no  roll  of  its  own,  and  used  the  rolls  of  its  three  chief 
■gans,  the  council  in  chancery,  the  council  in  the  exchequer,  and  the 
)uncil  in  parliament.  Like  parliament,  the  council  depended  upon  the 
jency  of  the  executive  departments  which  had  developed  before  either  of 
le  deliberative  organs  of  the  constitution. 

*  Maitland  asked  {Memoranda,  p.  Ixxxiii)  when  the  parliament  roll 
issed  out  of  the  custody  of  the  council  into  that  of  the  house  of  lords, 
he  answer  appears  to  be  "  never."  The  rolls  of  parliament  have 
ways  been  chancery  records  (since  they  were  lost  by  the  exchequer), 
tie  Journals,  of  course,  have,  on  the  other  hand,  always  been  in  the 
istody  of  the  houses. 


288  THE  EVOLUTION  OF  PARLIAMENT 

judicial  decisions  adopted  out  of  parliament.     There  was 
apparently  down  to  1322  no  parliamentary  function,  save 
that  of  taxation,  which  could  not  be  discharged  by  the 
council  alone;  and  even  the  saving  clause  needs  qualifica- 
tion.    Merchants  often  taxed  themselves  in  unparliamentary 
meetings,  and  as   late   as  1400  the  "  estates  "  in   a  grand 
conseil  taxed  themselves  to  avoid  recourse  to  parliament.^ 
In  1371  a  great  council  had  even  varied  a  subsidy  previouslj 
granted  in  parhament.^    We  trace  a  distinction,  which  seem 
clear  enough  in  modern  times,  back  to  a  period  in  whic 
the  line  is  blurred  and  wavering,  and  then  farther  to  whei 
it   disappears   altogether;    in  history,    as   in   the   simple 
biological  studies,  absolute  origins  are  beyond   our   ken 
The  council  in  parliament  is  thus  a  session  or  seri( 
of  sessions  of  the  council  expanded  in  ways  and  for  purpos( 
which  by  degrees  become  more  and  more  definite.     Tt 
first  purpose  was  certainly  to  provide  the  freest  access  f< 
petitioners  to  the  council.     It  has  been  said  that  parliamei 
sought,  by  appointing  receivers  and  triers  of  petitions,  1 
deprive  the  council  of  its  jurisdiction,  as  it  also  sought  1 
deprive  it  of  legislation.*     But  this  view  attributes  to  parlii 
ment  a  conscious  activity  the  centre  of  which  is  difhcuR 
to  locate.     Things  done  in  parliament  are  sometimes  do; 
by  one  estate  or  other,  but  more  often  by  the  council 
the  crown.     It  is  true  that  the  commons  grew  more  an' 
more  insistent  that  their  petitions  should  be  turned  by  t 
council  in  parliament  into  statutes,  but  that  is  not  qui 
the  same  thing  as  depriving  the  council  of  legislation, 
the  council  had  invited  petitions  in  parliament  long  befo: 

*  Nicolas,  i,  107.  It  was  possible  to  speak  of  the  "  estate  "  of  coun 
cillor,  which  ranked  next  to  an  earl's  (Baldwin,  p.  402),  and  also  of  thi 
"  estates  "  of  the  council,  as  well  as  of  the  estates  of  parliament  and  o 
the  estates  of  the  church  (Nicolas,  v.  88) ;  but  in  no  case  was  the  numbe: 
limited  to  three. 

2  Rot.  Pari.,  ii.  304;  cf.  ihid.  iv.  301.     See  below,  p.  330. 

*  There  are  two  technical  distinctions  between  parliaments  and  councils 
Parliaments  are  always  summoned  under  the  great  seal,  couiicils  under  tin 
privy  seal-  Secondly,  the  warrant  to  the  chancellor  to  summon  a  pariia 
ment  mentioned  no  names,  while  they  were  always  specified  in  the  W£ 
to  theJord  privy  seal  to  summon  a  council.     Cf.  Elsynge,  pp.  63-4. 

*  Baldwin,  p.  324. 


THE   COUNCIL   IN  PARLIAMENT  289 

the  commons  developed  a  will  of  their  own  or  devised 
the  means  of  expressing  it.  The  receivers  and  triers  were, 
moreover,  appointed  by  the  council,  and  probably  before 
Darliament  met.  Their  names  were  certainly  announced  in 
1341  some  days  before  the  attendance  was  sufficient  for 
the  business  of  parliament  to  begin. ^  The  appointment  in 
parliament  of  a  bishop,  two  earls,  and  two  barons  to  hear 
md  determine  all  complaints  against  the  king's  ministers 
'or  infractions  of  the  ordinances  of  1311,^  seems  to  have 
Deen  an  abnormal  demand  on  the  part  of  the  lords 
Drdainers;  and  the  more  usual  practice  was  for  the 
ouncil  to  appoint  triers  of  petitions  to  determine  such 
IS  they  could  and  merely  refer  the  rest  to  parliament.  It 
yas  the  council  which  arranged  that  petitions  presented 
n  parliament  should  be  free  of  charge,  while  writs  sued 
)ut  of  lower  courts  required  fees;  kept  procedure  in 
Darliament  free  from  the  petrifying  formalities  of  common 
aw ;  and  provided  in  parliament  a  means  for  reviewing  and 
:orrecting  the  whole  administration  of  justice.  It  is  a  late 
ievelopment  of  self-consciousness  when  the  creature  comes 
:o  regard  itself  as  its  own  creator. 

The  second  purpose  for  which  the  council  held  expanded 
;essions  in  parliament  was  to  provide  for  the  grant  of 
axation  under  the  guidance  of  those  who  required  the 
axes  and  would  spend  them;  and  the  somewhat  mono- 
:onous  series  of  addresses  with  which  parliaments  were 
)pened  in  the  middle  ages  played  no  small  part  in  the 
)low  education  of  the  commons  in  the  sense  of  political 
esponsibility.  Grants  might  have  been  extorted  locally; 
)ut,  granted  in  scores  and  hundreds  of  local  gatherings, 
hey  would  have  been  voted  without  that  reahzation  of 
lational  necessity  which  is  the  foundation  of  all  responsible 
government;  and  it  might  have  been  thought  that  the 
nevitable  place  in  which  these  explanations  should  have 
)een  made,  and  these  taxes  voted,  was  the  court  to  which 
l11  the  king's  heges  owed  suit  and  service,  were  it  not  for 
he  fact  that  outside  England  the  king's  highest  court 
1  Rot.  Pari,  ii.  126.  '  Ihid.,  i.  286. 

U 


290  THE  EVOLUTION  OF  PARLIAMENT 

and  the  estates-general  were  divorced,  and  taxes  were  not 
granted  where  justice  might  be  done  in  return.  Fortunately 
in  England  the  council  remained  embedded  in  parliament, 
while  pariiament  came  to  imply  an  ever  fuller  representatioi 
of  aU  sorts  and  estates  of  men. 

This    continuance   of   the    council    in   parliament    is    j 
feature  of  the  English  constitution  which  parliament  itself^ 
in    the    seventeenth    and    early    eighteenth    centuries    en- 
deavoured  in   vain  to   efface    and    destroy.     At    the  em 
of  the  middle  ages  the  parliament  chamber  is  altemativeb 
called  the  great  council   chamber.     In    1539    we  have  a"^ 
detailed  statute  regulating  the  place  of  councillors  in  the 
upper  house,  whether  they  are  peers  or  not ;    and  in  1541 
we   read   that    "on   21   March   the   council   sat   not,   for 
that  they  sat  both  forenoon  and  afternoon  at  the  parlia-i 
ment."  ^    It  was  not  xmtil  after  the  Revolution  that  attempt 
were  made  by  means  of  place  bills  to  exclude  the  counci 
from  the  house  of  commons.     They  failed  of  their  purpose 
and  they  never  applied  to  the  house  of  lords.     Historica 
development  and  the  spirit  of  the  constitution  proved  to( 
strong  for  the  doctrinaire  philosophy  and  prejudices  of  the 
revolutionary  Whigs. 

More  complicated  than  the  retention  of  the  council  ii 
parliament  was  the  definition  of  the  council  to  be  retainei 
therein.  We  have  seen  that  "  council "  might  be  protean  ii 
its  variety.  It  might  be  a  large  council  of  magnates  or  i 
minute  coimcil  of  ministers;  it  might  represent  a  baronia 
opposition  or  a  monarchical  administration.  Which  wa 
to  be  its  predominant  characteristic  when  it  sat  in  thi 
midst  of  the  estates  in  parliament  assembled?  Would  th 
council  preserve  the  shadowy  imity  which  its  growin 
diversities  had  not  quite  destroyed  in  the  middle  ages,  o 
would  it  become  so  fixed  in  its  diverse  aspects  that  a 
sense  and  all  appearance  of  identity  would  be  lost?  Thi 
seems,  in  fact,  to  have  been  the  fate  of  the  coimcil.  Th 
diverse  trend  towards  a  great  and  a  privy  council  go 
beyond  control,  and  the  two  aspects  of  the  council  becam 

^  Nicolas,  vii.  329,  330. 


THE   COUNCIL  IN  PARLIAMENT  291 

two  different  things.  In  other  words,  the  expanded  session 
of  the  council  in  parHament  set  up  for  itself  as  a  house  of 
lords,  while  the  privy  council  was  preserved  as  the  adminis- 
trative organ  of  the  crown.^  Both,  however,  continued  in- 
herent in  parliament,  though  the  schism  between  great 
and  privy  councils  led  to  the  emphasis  of  the  connexion 
between  the  great  council  and  parliament,  and  weakened 
that  between  parliament  and  the  privy  council ;  and  to  this 
discrimination  is  due  the  differentiation  between  the  legisla- 
ture and  executive.  The  great  council  dissociated  itself,  or 
emancipated  itself,  more  and  more  from  the  crown,  and 
became  less  and  less  a  council,  although  its  members  con- 
tinued their  claim  to  be  consiliarii  nati  of  the  king.  The 
privy  council,  on  the  other  hand,  came  to  be  more  and 
more  regarded  as  an  executive  body,  whose  claims  to 
legislate  were  viewed  with  increasing  distrust. 

The  process  by  which  the  great  council  emancipated 
itsQlf  from  the  crown  and  became  a  house  of  parliament 
was  the  evolution  of  the  theory  of  a  peerage.  Its  earlier 
stages  have  already  been  indicated. ^  The  possession  of 
certain  rights  of  jurisdiction,  or  the  possession  of  certain 
lands,  called  a  barony,  to  which  these  rights  were  attached, 
came  to  be  regarded  as  constituting  a  peerage  of  the  realm, 
and  as  entitling  the  possessor  to  a  special  writ  of  summons 
whenever  a  great  council  or  a  parhament  was  held.  It 
was  originally  a  liabihty,  rather  than  a  right,  which  was 
attached  to  tenure  per  baroniam,  and  in  the  fourteenth 
century  kings  were  moved  to  impose  or  threaten  heavy 
penalties  for  disobedience  to  the  summons.  The  peers, 
indeed,  were  more  anxious  to  deny  to  others  the  rights  of 

1  The  distinction  was  less  clear  when  the  council  sat  in  the  Star 
chamber  and  came  to  be  called  a  "  court  " ;  it  was  sometimes  even  called 
a  "  senate  "  ("  coram  dominis  in  regio  senatu  secus  nuncupato  the  Sterre 
Chamber,"  Lords'  Journals,  i.  72),  and  barons  claimed  as  barons,  but 
unsuccessfully,  a  right  to  be  summoned  to  it  as  they  were  to  the  house 
of  lords.  Their  failure  to  establish  their  claim  was  possibly  due  to  the 
fact  that  cases  involving  a  peer's  loss  of  freehold  were  dealt  with,  not 
in  the  Star  chamber,  but  by  the  peers  in  parliament;  and  their  land 
was  ever  the  main  concern  of  the  "  pieres  de  la  terre."  Other  matters 
might  be  left  to  the  crown  and  council. 

2  In  chapter  v. 


292  THE  EVOLUTION  OF  PARLIAMENT 

peerage  than  to  fulfil  their  own  duties  themselves;  and 
at  the  very  time  that  measures  were  being  taken  to  punish 
their  neglect  of  parliament,  they  were  insisting  that  other 
members  of  the  council  were  no  more  than  assistants  or 
attendants  without  a  right  to  vote.  This  reduction  of  the 
status  of  the  judges  and  law  officers  of  the  crown  affected 
both  the  council  in  parliament  and  the  council  out  of  parHa- 
ment.  From  the  middle  of  the  fourteenth  century  they 
ceased,  it  is  said,  to  be  sworn  of  the  council  ^  and  became 
merely  legal  assessors.  As  such  they  continued  to  sit  in 
parliament,  but  even  under  Henry  VIII,  who  was  no 
respecter  of  peers,  it  was  admitted  that  the  king's  lord 
chancellor  himself  had  no  right  or  interest  entitling  him  to 
a  vote  in  parliament  unless  he  were  a  peer.  The  same 
measure  was  meted  out  to  other  councillors  of  the  crown  : 
the  attorney-  and  solicitor-general  and  the  king's  serjeants- 
at-law  continued  to  receive  the  councillor's  special  writ  of 
summons  to  parliament,  and  the  former  do  to  this  day, 
though  they  never  obey  the  summons,  and  the  abolition  of 
the  order  of  the  coif  put  an  end  to  another  rust}''  link  between 
council  and  parliament.  But  constant  though  their  presence 
was  in  Tudor  parhaments,  and  active  as  their  service — 
and  that  of  their  colleagues,  the  masters  in  chancery  2 — 
was  in  the  upper  house,  these  legal  dignitaries  had  no  vote 
on  the  legislation  which  they  prepared.  So,  too,  the  other 
official  members  of  the  council  were  reduced  to  the  position 
of  advisers  to  the  peers.  The  great  officers  of  state  were 
given  a  place  by  statute  in  the  house  of  lords  whether 
they  were  peers  or  not;  ^  but  if  they  were  not  peers  they 

>  Baldwin,  p.  76.  This  statement  is  subject  to  considerable  reserva- 
tions; It  can  only  mean  that  the  judges  ceased  to  be  political  advisers 
of  the  king.  They  remained  his  legal  councillors,  and  the  two  chief 
justices  were,  as  a  matter  of  fact,  sworn  of  the  privy  council  in  the 
sixteenth  century.  The  lord  chancellor,  moreover,  has  never  been 
deprived  of  his  place  in  council. 

/..u^  u^^^  the  northern  rebels  complained  at  Pontefract  that  "those 
ot  the  chancery  were  growing  neglectful  of  their  "  office  amongst  the 
lords  in  not  providing  them  with  copies  of  bills  before  they  were 
ntfllf^S^^  commons  (Dodds,  Pilgrimage  of  Grace,  i.  360;  Engl. 
Hist.  Rev.,  v.  568;  Letters  and  Papers,  xii.  i.  410). 
»  31  Henry  VIII,  c.  10.  ^     ' 


THE   COUNCIL  IN  PARLIAMENT  293 

sat  lower  than  if  they  were,  on  their  respective  benches, 
while  the  secretaries  were  banished  to  the  upper  woolsack 
beside  the  chancellor.^  Apart  from  the  legal  members  no 
such  discrimination  between  peers  and  other  councillors 
was  suffered  to  disturb  the  council  out  of  parliament; 
and  commoners  like  Thomas  Cromwell  and  Sir  Francis 
Walsingham  were  just  as  much  "  lords  of  the  council "  as 
their  noble  colleagues.  Indeed,  the  success  of  the  peers  in 
parliament  was  counterbalanced  by  their  failure  in  the 
council  out  of  parliament.  There  the  council  became  effec- 
tively royal  and  privy;  the  magnum  dropped  off  from 
concilium,  and  the  magnates  under  the  Tudors  almost  dis- 
appeared from  the  privy  council.  Such  peers  as  survived 
were  almost  all  of  the  newest  creation.  Cromwell  and  Cecil 
were  not  of  the  council  because  they  were  peers ;  they  were 
made  peers  because  they  had  long  served  in  the  council, 
while  others,  such  as  Walsingham,  were  nearly  as  influential 
without  attaining  to  peerage  at  all. 

Nor  did  the  reduction  of  councillors  to  the  position  of 
assistants  in  the  house  of  lords  render  their  assistance  a 
negligible  quantity.  Tudor  law  was  judge-made  law,  not 
so  much  by  interpretation  in  the  courts,  as  by  discussion 
in  council ;  and  the  year-books  and  law  reports  are  replete 
with  judicial  decisions  on  constitutional  principles. ^  The 
judges  did,  in  fact,  in  Tudor  times  fulfil  to  some  extent  the 
function  of  the  supreme  court  under  the  constitution  of 
the  United  States,  and  Bacon's  encomium  of  the  consulta- 
tion of  judges  by  the  crown  was  a  deduction  from  his 
historical  study  of  Henry  VI I' s  reign.  It  was  the  judges 
who  decided  that  Henry  could  not  pass  an  act  of  attainder 
without  the  consent  of  the  commons,  and  Henry  accepted 

^  See  above,  p.  251.  Behind  the  lower  woolsack  sat  or  knelt  the  clerks 
of  parliament.  Barons  of  the  exchequer  had  apparently  no  regular  place 
in  parliament.  They  were  summoned  in  1305  (Maitland,  Memoranda, 
pp.  cvii-viii),  but  not  apparently  in  Edward  Ill's  reign  (cf.  Cal.  Close  Rolls 
1374-7?;  1377-81,  passim).  Glover,  however,  in  his  Pompa  Parliamentaris 
gives  them  as  present  in  1585,  while  D 'Ewes' picture  represents  them  as 
absent ;  see  Appendix. 

^  Apparently  the  judges  sat  for  this  purpose  (among  others)  in  the 
exchequer  chamber,  and  discussed  principles  without  necessarily  waiting 
for  a  case  to  be  brought  before  them  by  a  writ  of  error. 


294 


THE  EVOLUTION  OF  PARLIAMENT 


their  verdict  as  final.  It  was  the  judges  who,  in  the  first 
two  months  of  his  reign,  discussed  what  should  be  done 
in  parliament  with  the  problem  of  a  king  de  facto  who  was 
de  jure  an  attainted  traitor,  and  a  Speaker  who  was  in  an 
equally  parlous  case.^  It  was  the  judges,  too,  who  laid 
down  the  principle  of  Poynings'  law  years  before  its  enact- 
ment, and  they  also  determined  the  procedure  by  writ  of 
error  in  parliament,  declared  that  there  were  things  which 
parliament  could  not  do  by  statute,  decided  what  bills 
should  be  promoted  by  the  government,  and  defined  the 
limits  of  ecclesiastical  franchise.  The  precise  relation  of  this 
judicial  action  to  parhament  has  not  been  explained;  but 
whether  the  advice  was  tendered  in  or  out  of  parliament, 
and  whether  it  was  regarded  as  advice  or  decision,  it  is 
clear  that  both  crown  and  parliament  acted  upon  it. 

The  legal  members  of  the  council  were  equally  active  in 
sessions  that  were  undoubtedly  parHamentary.  It  has  been 
thought  that  they  were  really  responsible  for  the  provisos 
which,  the  king  frequently  added  to  bills  when  giving  the 
royal  assent,  and  that  they  exercised  the  chief  influence  in 
that  meeting  in  the  robing  chamber  of  the  palace  which 
decided  whether  the  royal  assent  should  be  given  at  all. 
Under  Henry  VI  it  had  been  referred  to  the  two  chief 
justices  to  determine  which  of  the  acts  passed  in  parliament 
should  be  considered  statutes  and  proclaimed,  and  which 
should  be  merely  handed  over  to  the  cleirk  of  the  council ;  ^ 
and  it  may  be  that  the  judges  were  responsible  for  no  slight 
alterations  in  bills  between  their  passage  in  parliament  and 
their  final  appearance  on  the  statute  rolls.  In  parhament 
itself  the  lawyers  of  the  council  had  much  to  do  with  legis- 
lation ;  and  in  the  first  years  of  Henry  VIIFs  reign,  at  least, 
a  bill  was  rarely  committed  to  any  one  else.^  At  every  stage, 
indeed,  their  influence  was  felt— -in  the  preliminary  discussion 

\  Z-^^:^°°-^-?'  ^^^^  ^"'  ^^-  i679>  p.  4;  cf.  my  Henry  VII,  ii.  lo-ii. 
*  Nicolas,  111.  22.  J  y  > 

»  Lords'  Journals,  i.  1-57  passim  ;  the  judges,  the  attorney-  and  solicitor- 
general  the  serjeants-at-law.  and  masters  in  chancery  were  the  usual 
committees  for  bills;  on  one  occasion  {ibid.,  p,  56)  a  bill  was  committed 
rli^  lords  to  the  attorney-general  "to  be  reformed"  after  it  had 
reached  an  eighth  reading. 


THE  COUNCIL  IN  PARLIAMENT  295 

of  principles  before  the  bills  were  framed,  in  their  actual 
drafting,  in  their  amendment  during  passage,  in  the  royal 
provisos,  and  in  their  final  form  on  the  statute-book.  The 
laws  of  England  would  have  been  singular  things  had  it 
been  left  to  peers  and  popular  representatives  to  make  them ; 
and  the  king's  council  in  parliament  played  no  small  part 
in  English  constitutional  history. 

Notwithstanding  these  eminent  services  to  parliamentary 
legislation,  the  position  of  the  council  in  parliament  grew 
more  precarious.  Henry's  act  of  1539,  indeed,  gave  some 
councillors  a  statutory  right  to  attend  the  house  of  lords, 
independent  of  a  peerage;  but  unless  they  were  peers 
they  could  not  vote,  and  the  act  did  nothing  for  those 
councillors  who  held  no  great  office  of  state.  It  was 
anomalous  that  a  lord  chancellor  like  Sir  Thomas  More 
should  preside  over,  and  day  by  day  adjourn,  the  council  ^ 
in  parliament  without  even  a  casting  vote  in  its  proceedings  ; 
and  the  anomaly  was  only  removed  by  the  growing  practice 
of  creating  the  chancellor  a  peer,  which  incidentally  ruled 
out  from  the  chancellorship  any  ecclesiastic  who  was  not  a 
bishop.  By  the  same  intrusion  of  peerage  into  the  council 
in  parliament  other  great  offices  of  state  were  restricted  to 
peers ;  and  those  who  were  not  peers  were  deprived  of  their 
traditional  place  in  parliament,  which  they  had  occupied 
since  its  origin,  when  the  core  of  every  parliament  was  a 
session  of  the  council. 

From  the  menace  of  this  exclusion  from  parliament  the 
council  was  saved  by  the  house  of  commons,  and  the  constitu- 
encies welcomed  those  whom  the  peers  had  rejected.  The 
multitude  of  privy  councillors  in  the  house  of  commons 
during  the  Tudor  period  has  often  been  used  as  a  proof  of 
the  packing  of  parliament ;  but  the  contention  ignores  the 
fact  that  so  long  as  parliaments  had  existed  councillors  had 
received  their  special  writs  of  summons.  It  is  a  strange 
inversion  of  parliamentary  history,  and  the  real  novelty  of 
Tudor  times  was  not  that  councillors  sat  in  parliament,  but 

1  The  entry  of  an  adjournment  of  the  house  of  lords  in  its  Journals 
during  the  session  of  1533  is  frequently  "  hodierno  consilio  soluto." 


296  THE  EVOLUTION  OF  PARLIAMENT 

that  they  sat  as  elected  representatives  instead  of  as  crown 
nominees,  just  as  the  attorney-  and  soHcitor-general  to-day 
prefer— unless  indeed  they  have  no  option— the  risks  of 
contested  election  to  obedience  to  a  certain  royal  summons. 
The  change  was  twofold  :  councillors  sat  in  the  house  of 
commons  instead  of  in  the  house  of  lords,  and  they  sought 
election.  It  was  natural  that  they  should  think  they 
had  some  claim  upon  the  constituencies,  and  that  the 
electors  were  not  making  any  great  concession  in  choosing 
those  who  had,  in  any  case,  a  legal  right  to  sit 
in  pariiament.  Probably  to-day,  if  peers  of  the  United 
Kingdom  could  sit  in  the  house  of  commons,  it  would  not 
be  considered  an  arbitrary  proceeding  to  offer  them- 
selves for  election.  Under  the  circumstances  the  amount 
of  pressure  actually  brought  to  bear  upon  constituencies  to 
elect  privy  councillors  as  their  members  seems  to  have 
been  sHght ;  probably  they  were  as  glad  then  to  get  privy 
councillors  to  represent  them  as  they  are  to-day  to  get 
cabinet  ministers  as  candidates. 

The  change,  by  which  privy  councillors  submitted  to 
popular  election  and  sat  in  the  house  of  commons,  is  impor- 
tant as  a  recognition  of  the  growing  weight  of  the  house  of 
commons  and  of  the  popular  element  in  the  constitution. 
It  points  in  the  same  direction  as  the  election  of  the  eldest 
sons  of  peers,  the  purchase  of  boroughs,  the  bribery  of 
electors,  the  ambition  of  aspiring  politicians  to  become 
members,  the  abeyance  of  residence  as  a  qualification,  and 
the  capture  of  country  seats  by  London  lawyers.  Possibly 
the  transference  of  councillors  from  the  upper  to  the  lower 
house  was  by  way  of  preference  rather  than  compulsion, 
and  they  vacated  their  place  in  the  house  of  lords  because 
they  found  greater  respect  and  an  ampler  scope  in  the 
house  of  commons.  In  the  upper  house  they  had  become 
assistants,  if  not  servants;  in  the  lower  they  were  more 
than  equal  to  their  colleagues.  They  formed  the  link 
between  the  government  and  the  commons,  and  did  their 
best  to  produce  harmony  between  the  two.  Both  Cromwell 
and  Cecil  owed  their  influence  largely  to  their  position  in 


THE   COUNCIL  IN  PARLIAMENT  297 

the  commons,  and  they  regularly  reported  to  their  sovereigns 
the  feeling  of  the  house/  and  to  the  house  the  wishes  of  the 
government.  The  privy  councillors  always  formed  part 
of  the  deputations  sent  by  the  house  to  impress  its  views 
on  Queen  Elizabeth  with  regard  to  such  matters  as  her 
marriage,  the  succession  to  the  throne,  the  execution  of 
Mary  Stuart,  and  abuses  like  monopolies ;  and  when  supply 
was  under  discussion  the  amount  was  always  referred  to  a 
committee  which  consisted  of  the  privy  councillors  in  the 
house  and  an  equal  number  of  private  members. ^  Their 
position  was  that  of  genuine  mediators;  they  performed 
a  duty  to  the  house  as  well  as  to  the  crown,  and  they  did 
not  always  agree  with  one  another  in  what  they  said  in 
debate.  It  was  the  divorce  between  the  Stuarts  and  their 
people  which  rendered  their  position  untenable,  and  raised 
the  issue  whether  they  were  servants  of  the  house  or  ministers 
of  the  crown. 

It  would  hardly  be  an  exaggeration  to  say  that  this 
identification  of  privy  councillors  with  popular  representa- 
tives was  as  important  a  stage  in  the  development  of 
responsible  government  as  the  growth  of  representation 
itself;  for  responsible  government  was  not  established  by 
summoning  representatives  to  Westminster,  but  by  embody- 
ing those. representatives  in  the  government  or  the  govern- 
ment in  those  representatives.  If  parliament  was  to 
remain  something  more  than  an  irresponsible  opposition, 
there  must  be  unity  between  it  and  the  government;  and 
responsible  government  involves  the  responsibility  of  the 
executive  as  well  as  that  of  the  legislature.  The  executive 
must  be  responsible  to  the  legislature,  but  in  an  equal 
measure  the  legislature  must  be  responsible  for  the  govern- 
ment. In  the  middle  ages  a  connexion,  if  not  unity,  had 
been  maintained  by  the  presence  of  the  council  in  parlia- 

1  Cf .  Cromwell's  letter  to  Henry  VIII  in  1534  {Letters  and  Papers,  vii.  51). 
In  Elizabeth's  reign  the  house  grew  sometimes  restive  over  these  reports, 
and  still  more  so  under  the  Stuarts;  but  to  make  them  has  continued 
to  be  a  regular  duty  of  the  leader  of  the  house, 

^  D'Ewes,  Journals,  p.  124;  Commons''  Journals,  i.  53,  74,  83,  104, 
116,  119. 


298  THE  EVOLUTION  OF  PARLIAMENT 

ment,  and  by  the  advice  that  was  constantly  given  by 
councillors  and  magnates  to  the  commons  in  their  domestic 
sessions  in  the  chapter  house.  The  tendency  to  exclude 
councillors  as  such  from  parliament  threatened  a  complete 
separation  of  powers;  and  the  danger  was  only  averted 
by  making  some  councillors  peers  and  securing  for  others 
seats  in  the  house  of  commons.  The  council  in  parliament 
was  thus  preserved  from  extinction ;  and  it  was  the  council 
in  its  most  royal  and  *'  privy  "  form  that  was  saved,  not 
merely  the  council  in  that  '*  great  "  and  attenuated  form 
in  which  it  assumed  the  guise  of  the  house  of  lords. 


J 


CHAPTER  XV 

THE   PEERS  IN   PARLIAMENT 

The  house  of  lords  has  long  been  regarded  as  the  most 
stable  and  conservative  element  in  the  British  constitution, 
and  among  the  claims  that  have  been  made  on  its  behalf 
to  the  political  gratitude  of  the  English  people  is  the  asser- 
tion that  seven  hundred  years  ago  it  extorted  Magna  Carta 
from  King  John.  In  reality,  few  elements  in  the  constitution 
have  been  based  upon  a  more  ambiguous  foundation  or  have 
suffered  more  radical  changes.  The  lords  themselves  are 
still  in  doubt  about  their  origin ;  and  while  they  agree  on  the 
palpable  fiction  that  Edward  I  created,  and  intended  to 
create,  a  number  of  hereditary  peerages,  they  differ  as  to  the 
date  of  the  creation,  and  within  recent  years  they  have 
decided  that  a  summons  to  the  parliaments  of  1283  and  1290 
both  did  and  did  not  create  hereditary  peerages.  Some  peers 
sit  in  the  house  of  lords  by  a  title  which  the  house  of  lords 
itself  has  declared  invalid  in  the  case  of  other  claimants. 
At  one  time  the  title  was  tenure  by  barony,  at  another  writs 
of  summons,  and  at  a  third  creation  by  letters  patent.  Most 
peers  sit  in  the  right  of  their  fathers,  but  others  have  sat  in 
the  right  of  their  mothers,  and  a  few  in  the  right  of  their 
wives  or  of  their  sons.  There  are  many  peers  who  cannot 
sit  in  the  house  of  lords,  and  some  of  the  lords  who  do  sit 
are  not  peers.  Some  sit  because  they  are  elected  by  their 
fellow-peers,  some  because  they  are  elected  by  episcopal 
chapters  on  the  nomination  of  the  crown.  Some  are  elected 
for  Hfe,  some  until  they  resign,  and  some  for  a  single  parlia- 
ment. Some  have  been  born  peers,  some  have  achieved 
peerage  by  various  means,  including  purchase,^  and  others 

^  James  I  instituted  a  regular  tariff :  ;^io.ooo  for  a  barony,  ;£i5,ooo  for 
a  viscountcy,  ;^20,ooo  for  an  earldom  (Pike,  p.  355). 

299 


300  THE  EVOLUTION  OF  PARLIAMENT 

have  had  it  thrust  upon  them.  Almost  every  principle 
upon  which  the  house  was  founded  has  been  inverted  during 
its  construction ;  and,  whatever  may  be  its  defects,  neither 
its  history  nor  its  composition  is  lacking  in  variety. 

In  an  earlier  chapter  an  attempt  has  been  made  to  trace 
the  evolution  of  peerage  and  the  process  by  which  the  peers 
sought  to  monopolize  power  in  the  king's  council,  to  convert 
it  into  a  council  of  magnates  and,  when  it  sat  in  parliament, 
into  a  house  of  peers.  The  process  has  been  as  prolonged 
as  the  growth  of  the  constitution ;  it  was  not  finished  at  the 
close  of  the  middle  ages,  and  the  latest  steps  towards  com- 
pleting the  hereditary  character  of  the  house  of  lords  were 
not  taken  until  the  nineteenth  century.  It  is  a  house  of 
lords,  but  the  lords  are  not  all  hereditary,  and  it  is  not  yet 
a  house  of  nothing  but  peers  who  are.  Fortunately  or 
unfortunately,  its  case  is  one  of  arrested  development; 
and  the  changes  that  threaten  in  the  future  are  likely  to  be 
in  the  direction  of  reversion  to  its  original  type,  at  any  rate 
to  the  extent  of  reducing  or  eliminating  the  principle  of 
peerage  which  was  superimposed  upon  the  council  in  the 
later  middle  ages.  For  that,  if  for  no  other  reason,  the 
history  of  the  peers  in  parHament  is  of  immediate  interest. 

The  fundamental  change  in  the  house  of  lords  has  been 
its  conversion  from  the  king's  great  council,  sitting  in  parlia- 
ment in  virtue  of  royal  writs,  into  a  body  of  legislators 
basing  their  right  to  legislate  and  their  independence  of  the 
crown  upon  the  principle  of  primogeniture.  As  early  as 
1346  a  distinction  had  been  drawn  between  the  councillors 
and  the  magnates  in  the  great  council  in  parliament.^ 
Judges,  for  instance,  were  summoned  to  treat  with  the  king 
and  others  of  his  council;  other  councillors,  who  eventually 
come  to  be  known  as  peers,  are  summoned  to  treat  with  the 
king,  prelatis,  procerihus,  et  magnatihus.  The  distinction  was 
not  reflected  in  the  designation  of  those  who  sat  in  camera 
magni  consilii  vocata  le  parlement  chambre;  they  were  all  called 
"  seigneurs  "  or  "  lords,"  and  the  term  included  the  coun- 


THE  PEERS  IN  PARLIAMENT  301 

cillors  as  well  as  the  prelates  and  magnates.  A  knight 
might  well  be  a  lord  of  parhament.^  But  the  differentia- 
tion grew  with  the  increasing  stress  on  "  peerage,"  although 
peers  and  peerage  are  not  words  found  in  parliamentary 
records  of  the  early  Tudor  period.  Nowhere,  indeed,  in 
the  sixteenth  century  do  we  find  any  clear  statement  of 
peerage  theory,  and  Cowell,  in  his  Interpreter  (1607), 
vaguely  defines  the  peers  as  those  whom  the  king  summons 
by  special  writ  to  parliament.  The  anarchy  of  the  Wars 
of  the  Roses  and  the  authority  of  Henry  VII  militated 
against  the  enunciation  of  a  constitutional  doctrine; 
both  conditions  rendered  a  right  to  sit  in  parliament  of  little 
practical  value.  It  was  not  until  parliamentary  struggles 
superseded  the  arbitrament  of  war  and  the  autocracy  of  the 
crown  that  a  seat  in  the  house  of  lords  became  an  object 
of  desire  and  a  means  of  political  power. 

Henry  VII  was  thus  left  to  do  much  as  he  liked  in  the 
parliament  chamber.  Opposition  which  had  not  been  settled 
at  Bosworth  had  recourse  to  conspiracy  and  rebellion;  and 
the  futility  of  parliamentary  opposition  freed  Henry  from  any 
temptation  to  interfere  with  traditional  methods  of  summons. 
Lords  who  might  have  resisted  in  council  had  already 
committed  themselves  to  treason  and  been  disposed  of  by 
more  drastic  fnethods  than  the  refusal  of  writs.  The  same 
conditions  obtained  in  the  early  years  of  Henry  VIII ;  and 
it  was  not  until  a  momentous  revolution  in  domestic  politics 
was  broached  that  fundamental  divergence  of  view  led  the 
crown  to  consider  its  constitutional  ways  and  means  of 
success.  The  first  indication  of  the  coming  crisis  was 
connected  with  that  famous  controversy  between  the  church 
and  the  laity  which  arose  over  Richard  Hunne's  case  in 
15 15 ;  2  and  in  that  year  the  judges,  acting  as  interpreters 
of  the  constitution,  declared  that  the  presence  of  the  spiritual 
lords  was  not  essential  to  parliament.^ 

^  Cf .  Lords'  Jcurnals,  vol.  i.  p.  xxvi. :  "  every  other  knight,  not  being  lord 
of  the  parliament." 

*  See  Miss  Jeffries  Davis  in  Engl.  Hist.  Rev.,  xxx.  477. 

'  Pike,  p.  327;  Letters  and  Papers  of  Henry  VIII y  vol.  ii.  pt.  i.  Nos. 
1313-14- 


302  THE  EVOLUTION  OF  PARLIAMENT 

Meanwhile  practice  had  crystalHzed,  and  Henry  VIII 
was  too  prudent  to  attempt  to  enforce  the  constitutional 
doctrine  of  his  advisers  in  this  respect.  Nor  did  he  interfere 
with  the  routine  of  chancery  in  issuing  special  writs  of 
summons;  the  fact  that  chancery  continues  to  issue  such 
writs  to  the  law  officers  of  the  crown,  which  have  not  been 
obeyed  for  centuries,  suggests  that  Henry  was  wise  to  leave 
its  practice  alone.  Occasionally  he  seems  to  have  sent  a 
private  intimation  to  a  lord  that  he  would  do  well  to  refrain 
from  coming  to  parliament;  and  when  they  wanted  to 
abstain  they  had,  of  course,  to  seek  his  permission.  But  the 
regular  writs  were  issued  as  though  the  crown  had  no  option 
in  the  matter,  and  the  only  method  Henry  took  to  modify 
the  personnel  of  the  house  of  lords  was  the  creation  of 
peers.  The  dissolution  of  the  monasteries  materially  altered 
the  composition  of  the  house,  but  that  was  not  the  object 
of  their  suppression.  The  ItaUan  and  absentee  bishops  of 
Salisbury  and  Worcester  were  deprived  by  statute,^  there 
being  no  means  by  which  the  church  in  England  could  rid 
itself  of  the  incubus;  but  the  bill  was  not  passed  for  the 
purpose  of  catching  votes.  It  is  doubtful,  too,  whether  that 
was  the  motive  of  Henry's  few  creations  in  1529. ^  The 
Boleyns  would  in  any  case  have  been  ennobled,  whether 
their  votes  were  needed  or  not ;  and  the  real  question  was 
not  how  to  obtain  a  majority  of  lay  over  clerical  votes,  but 
whether  any  lay  majority  couM  legally  bind  the  church  in 
spiritual  matters  against  the  votes  of  its  representatives. 
The  critical  resolutions  were  carried,  not  by  a  created 
majority,  but  by  a  conference  between  the  two  houses,  in 
which  the  spiritual  and  temporal  peers  were  equally  repre- 
sented, and  the  commons  voted  with  the  latter.  The  small 
nimiber  of  twenty-eight  temporal  peers  summoned  in  1523 
was  quite  abnormal;  and  even  in  1534,  when  Henry  had 

*  Lords'  Journals,  i.  80. 

*  Round,  Studies  in  Peerage  History,  pp.  330,  etc.     Lord  Ogle  was  not 
summoned  between  1529  and  1544,  Darcy  was  kept  away  in  1535-6,  and 
possibly  Tunstall  in  1532  ;  but  these  instances  are  too  few  to  justify  anyj 
generalization,  except  that  the  crown's  control  over  its  own  summons 
was  not  quite  extinct. 


THE  PEERS  IN   PARLIAMENT  303 

raised  the  number  to  fifty-four,  they  were  fewer  than  the 
temporal  peers  summoned  in  1454. 

The  dissolution  of  the  monasteries  reduced  the  number 
of  spiritual  peers  from  forty-seven  to  twenty-one;  and 
while  Henry  VIII  increased  the  number  of  bishops  from 
twenty-one  to  twenty-seven,  the  abolition  of  the  papal 
jurisdiction  and  of  all  but  the  form  of  capitular  election 
gave  the  crown  substantial  control  of  these  votes.  At 
the  end  of  his  reign  the  majority  of  the  existing  peers 
had  been  created  by  Henry  VIII;  but  Mary  reheved  the 
church  in  England  of  its  subjection  to  the  crown  by 
subjecting  it  to  the  papacy,  and  the  Elizabethan  settle- 
ment of  rehgion  owed  nothing  of  its  triumph  to  royal  control 
over  episcopal  votes  in  the  house  of  lords.  Her  success, 
however,  placed  twenty-six  spiritual  peerages  at  her  disposal, 
and  these,  with  half  a  dozen  temporal  creations,  made  the 
house  of  lords  as  safe  in  her  keeping  as  a  pocket  borough. 
At  her  death  the  temporal  peers  numbered  sixty,  and  the 
house  of  lords  contained  eighty-six  members,  which  was 
slightly  less  than  its  average  size  since  1350 ;  only  during 
Henry  VII's  reign  and  the  early  years  of  Henry  VIII  had 
the  number  sunk  below  eighty,  and  the  difference  lay  in  the 
reduction  of  the  spiritual  peers  from  more  than  half  to  less 
than  a  third  of  the  whole  house. 

It  was  the  Stuarts  who,  in  seeking  to  control  the  house 
by  creations,  rendered  it  uncontrollable.  No  doubt  it  was 
inconvenient  for  James  I  to  inherit  a  house  of  lords  con- 
sisting of  eighty-six  members,  none  of  whom  he  had  created. 
The  bishoprics,  of  course,  gradually  fell  into  his  hands,  and 
by  creating  fifty-four  peers  he  nearly  doubled  the  temporal 
peerage,  but  failed  to  make  it  amenable.^  On  the  eve  of 
the  Scottish  Union  the  temporal  peers  numbered  a  hundred 
and  seventy-six ;  that  act  added  sixteen,  the  Tories  created 
twelve  to  pass  the  treaty  of  Utrecht,  and  these,  with  the 
bishops,  endowed  the  House  of  Hanover  at  its  accession  with 
an  upper  house  of  two  hundred  and  thirty.  Nevertheless 
the  younger  Pitt  was  the  only  begetter  of  the  Victorian 
^  See  Deputy-Keeper  of  the  Records  ^jth  Report;  Pike,  pp,  357  sqq. 


304  THE  EVOLUTION  OF  PARLIAMENT 

house  of  lords.  Owing  partly  to  the  Irish  union,  but 
more  to  Pitt's  desire  to  enlist  support  among  the  nouveaux 
riches  of  the  war  and  the  industrial  revolution,  the  peerage 
had  been  more  than  doubled  at  the  time  of  his  death.^ 
It  almost  rivalled  in  size  the  house  of  commons,  and  counted 
over  five  hundred  members.  The  policy  of  control  by 
creation  had  clearly  reached  its  limit,  and  the  house  of 
lords  was  independent  at  last.  For  the  first  time  in  its 
history  it  contained,  in  the  nineteenth  century,  an  over- 
whelming majority  of  members  who  had  been  born,  and  not 
created  peers.  During  the  middle  ages  the  spiritual  peers, 
who  were  not  hereditary,  always  outnumbered  their  temporal 
colleagues.  The  bishops,  new  creations,  and  their  friends 
among  the  old  enabled  Elizabeth,  the  Stuarts,  and  even 
Pitt,  to  counterbalance  hereditary  independence;  and  the 
sons  of  Pitt's  house  of  lords  were  the  first  generation  of  peers 
by  primogeniture  to  be  undisputed  masters  of  their  own 
house.  It  was  not  a  mere  coincidence  that  that  generation 
brought  the  country  to  the  verge  of  revolution  in  1832. 
The  hereditary  principle  is  not  the  rock  upon  which  the 
house  of  lords  was  founded,  but  the  rock  on  which  it 
foundered. 

The  multiplication  of  the  size  of  a  council  six-  or  sevenfold 
involved  a  radical  change  in  its  functions  and  composition  ; 
and  the  house  of  lords  became  less  and  less  a  council, 
less  and  less  judicial,  less  and  less  a  body  to  get  things  done, 
and  more  and  more  an  opposition.  A  body  of  six  hundred 
men  can  hardly  be  more  than  a  public  meeting,  and  both 
houses  of  parhament  are  now,  in  fact,  public  meetings 
which  do  most  of  their  useful  discussion  by  way  of  private 
conversation.  The  difference  is  that  while  the  house  of 
commons  is  a  public  meeting  of  plenipotentiaries,  the 
house  of  lords  is  a  pubHc  meeting  of  private  persons 
with  very  unequal  qualifications  for  the  discharge  of  their 

*  It  has  been  nearly  doubled  again  since  1806,  and  433  new  peerages 
were  created  between  1 880  and  1 920.  The  total  membership  of  the  house 
ot  lords  IS  now  approachmg  a  thousand ;  and  the  original  proportions  of 
ecclesiastical  and  representative  Scottish  and  Irish,  peers  to  those  of  the 
Umted  Kmgdom,  have  entirely  disappeared. 


THE  PEERS  IN  PARLIAMENT  305 

public  duty.  The  best  apology  for  the  house  of  lords  as 
a  political  authority  is  the  fact  that  for  five-sixths  of  its 
business  it  consists  of  less  than  one-sixth  of  its  members; 
but  it  is  a  precarious  title,  which  depends  upon  the  non-user 
of  rights  by  the  great  majority  of  their  proprietors,  and  the 
house  of  lords  is  a  serious  drawback  to  the  advantages  of 
allowing  a  constitution  to  grow,  instead  of  constructing  it 
on  a  plan.  It  does  not  represent  any  conscious  design, 
and  it  would  never  have  entered  into  the  mind  of  man  to 
construct  a  second  chamber  on  the  principles  which  it  is 
presumed  to  embody. 

The  original  obligation  out  of  which  it  grew  was  the 
liability  of  tenants  who  held  land  from  the  crown  to  render 
suit  and  service  at  the  king's  court.  The  service  was  of 
value  because  it  was  largely  military,  and  great  holders  of 
land  were  in  a  better  position  than  others  to  provide  armed 
forces.  But  the  advice  that  was  also  expected  would  be 
expert,  because  in  the  middle  ages  the  management  of 
England  was  a  problem  akin  to  that  of  the  management  of 
the  domains  which  the  tenants-in-chief  possessed.  A  peer 
like  Thomas  of  Lancaster,  who  held  five  earldoms,  might  be 
presumed  to  enjoy  the  practical  experience  which  would 
make  his  advice  of  value  to  the  crown.  But  the  crown 
also  possessed  the  right  of  selecting,  by  special  writ  of 
summons,  the  tenants-in-chief  whose  advice  it  valued  and 
desired;  and  it  was  not  from  among  them  exclusively  that 
kings  formed  their  council.  Others  were  included  for  legal 
skill  not  possessed  by  the  barons,  and  later  on  there  were 
added  men  of  commercial  experience  and  political  wisdom, 
as  English  policy  grew  more  complex  and  embraced  multi- 
farious interests.  The  holders  of  land  were,  however, 
entrenched  in  the  council,  and  gradually  the  breach  was 
widened  between  baronial  councillors,  whose  point  of  view 
was  local  and  territorial,  and  those  new  men  who  depended 
on  the  crown,  and  viewed  politics  from  the  centre  as  royal 
or  national  business.  This  divergence  differentiated  the 
great  from  the  privy  council,  and  left  the  former  in  parlia- 
ment as  the  embodiment  of  the  landed  interest;   it  was  on 

X 


3o6  THE  EVOLUTION  OF  PARLIAMENT 

questions  relating  to  the  tenure  of  land  that  the  magnum 
concilium  claimed  and  secured  the  decisive  voice,  and  it 
was  the  policy  of  strict  entails,  designed  to  preserve  the 
integrity  of  great  estates,  that  led  to  the  recognition  of  primo- 
geniture as  the  main  title  to  a  seat  in  the  house  of  lords. 
This  development  was  but  slowly  affected  by  the  growth 
of  industry  and  commerce,  because  the  wealth  derived 
therefrom  was  so  largely  invested  in  land  that  the  interests 
of  the  two  classes  always  tended  to  coincide,  and  wealth  in 
land  continued  to  be  the  basis  of  the  house  of  lords; 
indeed,  one  of  the  motives  of  the  dissolution  of  the  monas- 
teries was  to  provide  new  lands  for  the  nouveaux  riches, 
and  many  of  our  ducal  houses  were  founded  on  the  spoliation 
of  the  church. 

Wealth  in  land  and  wisdom  in  council  are  not,  however, 
synonymous  terms,  and  the  conciliar  character  of  the  house 
of  lords  was  obscured  by  the  peerage.  While  the  house 
asserted  with  growing  emphasis  its  claims  as  a  strictly 
hereditary  peerage,  it  clung  tenaciously  to  powers  it  had 
possessed  as  a  council ;  and  its  history  for  some  two  centuries 
has  consisted  mainly  of  struggles  to  retain  rights  of  jurisdic- 
tion and  legislation  which  were  growing  more  and  more 
anomalous.  Most  of  the  privileges  of  the  house  came  to 
it  in  its  capacity  as  a  royal  council ;  and  as  recently  as  the 
Act  of  1876  appeals  to  the  house  of  lords  were  described 
as  being  heard  '*  before  her  Majesty  the  Queen  in  her  Court 
of  Pariiament."  1  But  the  sovereign  had  gradually  been 
deprived  of  all  discretion  in  determining  the  composition 
of  his  court  and  council  in  parliament.  In  the  Bristol  and 
Anmdel  cases,  in  the  reign  of  Charles  I,  the  lords  declared 
that  a  writ  of  summons  could  not  be  refused  to  a  peer,  and 
that  the  king  cordd  not  prevent  him  from  obeying  it.^    At 

*  Pike,  pp.  268,  306. 

2  Gardiner,  History  of  England,  vi.  91-115;  Hallam,  i.  379-80;  Lords' 
Fi^toKoVK  l""^^''4'  Pfynge,  pp.  59-60,  192-242.  As  recently  as  1601 
Rrr^f^r  1  r  afforded  a  precedent  for  Charles  I  by  directing  Rutland, 
Shouph  wruTf '  S^"^y«'  and  Montague  not  to  appear  in  parliament 
218  19^  22  )  ^''"'^^^^^  ^ad  been  sent  them  {Acts  P. C.  1601-4,  pp. 


THE  PEERS  IN   PARLIAMENT  307 

the  Restoration  they  re-affirmed  the  inaHenable  right  of 
peers  to  their  seats,  while  they  repudiated  all  the  medieval 
principles  from  which  those  rights  were  deduced.  They 
abolished  all  feudal  services,  of  which  attendance  at  the 
king's  court  was  one ;  ^  they  decided  that  the  possession  of 
a  barony,  the  original  ground  for  the  exercise  of  jurisdiction, 
constituted  no  right  to  a  peerage ;  ^  and  they  denied  their 
obligation  to  obey  the  royal  summons  to  parliament,  while 
claiming  the  right  to  come  if  they  chose.^  All  conception  of 
duty  was  merged  in  privilege ;  and,  taking  a  leaf  out  of  the 
Stuart  note-book,  the  lords  grounded  their  privilege  on 
indefeasible  hereditary  right.  Peerage  became  indelible  save 
by  attainder;  no  misdemeanours  and  no  incapacity  could 
deprive  a  peer  of  his  dignity ;  and  the  Revolution  of  1688 
left  the  peerage  in  possession  of  rights  which  it  denied  to  the 
crown.  The  peer  might,  indeed,  be  excluded  from  parlia- 
ment for  his  faith  or  misconduct,  but  he  did  not  thereby 
cease  to  be  a  peer. 

The  claim  of  a  body  of  landlords  to  be  the  highest  court 
of  appeal  over  the  whole  complicated  sphere  of  civil  juris- 
diction was  the  most  singular  of  the  anomalies  arising  from 
the  simultaneous  retention  by  the  lords  of  the  powers  of  a 
council  and  their  repudiation  of  the  principles  on  which  it 
was  constituted.  Edward  Fs  "  parliaments  of  the  council  " 
had  been  held  to  determine  the  law's  delays  and  the 
judges'  doubts,  matters  which  were  commonly  settled  after 
the  barons  and  elected  commons  had  departed;  and  the 
sentence  of  the  high  court  of  parliament  was  that  of  the 
king  in  council.  As  late  as  the  reign  of  Henry  VII  the 
judges  are  the  exclusive  arbiters  of  this  jurisdiction ;    but 

1  Pike,  pp.  356-7. 

2  In  the  Fitzwalter  case  (1669),  reaffirmed  in  the  Berkeley  case  (1861). 
The  principal  ground  for  this  decision  was  the  reasonable  argument  that 
a  "  barony  "  was  devisable  by  will,  and  that  if  peerage  attached  to  a 
barony,  and  a  seat  in  the  house  of  lords  to  a  peerage,  the  holder  might 
dispose  of  political  power  by  sale  or  by  bequest.  The  objection  did  not 
lie  against  the  medieval  tenure  by  barony,  because  the  tenant  could  not 
then  dispose  of  lands  which  belonged  to  the  crown. 

^  Disobedience  to  the  royal  writs  of  summons  became  common  form 
with  the  peers  as  time  went  on,  and  no  king  since  the  Restoration  was 
in  a  position  to  impose  the  penalties  for  dereliction  of  duty  which  had 
been  regular  in  the  middle  ages. 


3o8  THE  EVOLUTION  OF  PARLIAMENT 

by  the  middle  of  the  nineteenth  century  the  peers  had 
turned  the  council  so  topsy-turvy  that  not  only  had  they 
arrogated  to  themselves,  a  non-judicial  body,  the  supreme 
decision  on  points  of  law,  but  they  had  reduced  the  real 
lawyers  to  assistants  and  advisers.  The  history  of  this 
blue-blooded  revolution  requires  a  little  attention. 

No  doubt  a  claim  to  jurisdiction  seemed  natural  to  a 
baron ;  for  a  barony  in  the  middle  ages  consisted  largely  in 
the  jurisdiction  and  profits  therefrom  which  it  imphed.  But 
a  barony  was  valued  by  its  medieval  possessor,  not  for  the 
opportunity  which  its  courts  afforded  him  of  displaying 
legal  wisdom,  but  for  the  emoluments  which  accrued  from 
the  dispensation  of  justice;  it  was  the  lord's  steward  who 
judged,  while  his  master  received  the  proceeds  of  judgement. 
Moreover,  the  king,  as  lord  paramount  of  the  land,  occupied 
in  the  high  court  of  parliament  the  same  position  of  privilege 
that  the  baron  held  in  his  baronial  franchise ;  and  the  only 
right  the  barons  possessed  in  the  king's  court  was  to  be  tried 
by  their  peers,  not  to  try  other  people.  When  Edward  I 
made  parliament  the  common  receptacle  for  his  subjects' 
petitions,  it  was  to  himself  and  his  judges  in  council,  and 
not  to  a  public  meeting  of  peers,  that  he  provided  access. 
The  commons,  however,  having  sifted  the  petitions  and 
made  the  important  ones  common,  took  to  the  practice  of 
referring  the  rest  to  the  council  and  departing  without  a 
reply.  Presently  direct  access  to  the  council,  and  through 
the  council  to  chancery,  by  means  of  bill  or  petition,  was 
accorded  by  statute;  .the  stage  of  reception  and  reference 
by  parliament  to  the  council  was  omitted,  and  from  the 
reign  of  Henry  IV  original  jurisdiction  in  parliament  rapidly 
decreased.!  The  petitions  which  had  flowed  in  thousands 
to  parliament  were  diverted  to  chancery,  the  courts  of 
star  chamber  and  requests,  and  other  departments  of  the 
council.  This  was  a  characteristic  feature  of  the  Tudor 
period,  and  during  the  first  seventeen  years  of  James  I's 

1  Hale.  Jurisdiction  of  the  Lords,  ed.  Hargrave,  1796,  p.  vi;  Palgrave. 
Report  on  Public  Petitions  (Pari.  Papers,  1833.  xii.  19) ;  Mcllwain,  p  133; 
ssicola.s,  Proc.  of  Pnvy  Council,  i.  73,  v.  p.  xi;  Leadara,  Star  Chamber 
(belden  Soc),  1.  pp.  xxiii-iv,  lix-lx;  Baldwin,  pp.  243-9. 


THE  PEERS  IN  PARLIAMENT  309 

reign  there  is  said  to  have  been  only  one  writ  of  error 
brought  before  parHament.^ 

Dissatisfaction,  however,  with  the  uses  to  which  the 
Stuarts  put  the  jurisdiction  of  their  prerogative  courts  led 
to  a  demand  for  its  revival  in  parliament ;  and  the  popularity 
of  the  impeachment  of  Stuart  ministers  afforded  the  lords 
an  easy  re-entry.  But  in  the  interval  the  lords  had  con- 
verted the  king's  council  in  parliament  into  a  house  of 
peers,  and  under  the  guise  of  restoration  a  supreme  appellate 
jurisdiction  was  vested  in  men  the  like  of  whom  had  never 
possessed  it  before.  The  commons,  indeed,  were  not  quite 
content  with  this  restoration;  they  wanted  a  place  in  the 
sun  of  parliamentary  jurisdiction,  and  a  grand  contest  of 
legal  wits  was  waged  over  the  question  whether  or  not  the 
commons  were  judges  in  parliament. ^  Their  distrust  of 
the  Stuart  judges  distorted  their  history  and  precluded  a 
real  restoration;  and  they  had  in  the  end  to  be  satisfied 
with  the  part  of  the  grand  inquest  of  the  nation,  presenting 
offenders  against  the  state  for  the  judgement  of  the  peers. 
From  this  jurisdiction,  which  was  of  first  instance  with  the 
commons  as  prosecution,  the  lords  proceeded,  in  the  reign 
of  Charles  II,  to  claim  an  appellate  jurisdiction  without  any 
intervention  of  the  commons.  The  abolition  by  the  Long 
parliament  of  the  prerogative  courts,  to  which  the  council 
had  delegated  much  of  its  jurisdiction,  had  left  a  void 
in  that  sphere  which  the  common  law  courts  could 
not  fill;   and  the  peers  stepped  into   the  breach.     Their 

1  Elizabeth  had  provided  in  1585  for  the  hearing  of  writs  of  error  from 
the  queen's  bench  in  the  exchequer  chamber  when  parliament  was  not 
sitting. 

*  Floyd's  case  in  162 1,  in  which  the  Commons  inflicted  severe  penalties 
on  one  who  was  not  a  member  of  their  house,  is  well  known  (Gardiner, 
iv.  119-21;  Hallam,  i.  360-2),  and  is  supposed  to  have  been  unprece- 
dented. But  in  1529  Henry  VIII  writes  to  Lady  Worsley  forbidding  her 
to  molest  any  further  a  clerk  accused  of  attempting  to  poison  her  husband, 
"  as  the  House  of  Commons  has  decided  that  he  is  not  culpable  "  {Letters 
and  Papers,  iv.  5293,  v.  117 ;  his  case  had  apparently  been  brought  up  from 
king's  bench  to  parliament  on  a  writ  of  error) ;  and  the  house,  before  passing 
the  bill  of  attainder  against  Thomas  Seymour  in  1549,  resolved  that  it 
would  hear  the  evidence  "  orderly  as  it  was  before  the  Lords"  {Commons' 
Journals,  i.  9),  though  the  answer  was  that  it  was  not  necessary  in  that 
"  court."  Each  part  of  the  high  court  of  parliament  was  claiming  to  be  a 
whole. 


3IO  THE  EVOLUTION  OF  PARLIAMENT 

assumption  was  not  unchallenged,  but  the  commons  were 
engaged  upon  a  similar  assumption  in  the  sphere  of  finance ; 
and  when  the  peers  asked  for  records  establishing  the 
monopoly  of  supply  claimed  by  the  commons,  the  lower 
house  retorted  with  a  similar  demand  for  the  evidence  upon 
which  the  lords  based  their  assumption  of  appellate  juris- 
diction. Both  houses  were,  in  fact,  appropriating  the  effects 
of  a  languishing  monarchy,  and  they  agreed  to  divide  the 
spoil.  The  divergence  of  parliament  into  two  houses 
prevented  the  common  enjoyment  of  the  fruits  of  parlia- 
mentary triumphs;  and  the  lords  acquiesced  in  the 
commons'  control  of  taxation,  while  the  commons  accepted 
the  claims  of  the  lords  to  the  sole  exercise  of  appellate 
jurisdiction. 

The  subservience  of  the  judges  to  the  Stuarts  relieved  the 
peers  of  any  sense  of  obligation  to  share  with  them  their 
newly-won  powers;  and  the  position  of  the  judges  in  the 
high  court  of  parliament  grew  steadily  worse.  Having  been 
hmited  to  judicial  functions,  they  were  reduced  even  there 
to  giving  advice;  then  their  advice  was  rejected,  and  at 
length,  in  1856,  the  peers  refused  to  consult  them.i  The 
revolution  had  reached  its  limit  when  the  supreme  court  of 
appeal  refused  to  consult  the  judges,  whose  presence  alone 
gave  a  shred  of  historical  and  moral  support  to  the  claims  of 
the  peers;  and  the  judges  soon  had  their  revenge.  The 
mere  pressure  of  public  opinion  drove  the  peers  from  the 
position  they  occupied,  and  no  peer  who  neither  holds  nor 
has  held  high  judicial  office  under  the  crown  now  ventures 
to  sit  when  the  house  of  lords  is  acting  as  a  supreme  court 
of  appeal.  The  efficiency  of  the  house  of  lords  in  its 
judicial  capacity  depends  upon  the  rigorous  abstention 
from  its  proceedings  of  every  peer  who  owes  his  position  to 
primogeniture ;  and  so  far  as  jurisdiction  is  concerned,  the 
peers  have  abandoned  the  hereditary  foundation  of  their 
house. 

This  abdication  was  not  without  awkward  logical  conse- 
quences, and  the  question  arose  why  primogeniture  should 
qualify  peers  to  make  the  laws  which  it  did  not  qualify  them 

1  Pike,  p.  377. 


THE  PEERS  IN   PARLIAMENT  3I1 

to  interpret.  The  question  was  emphasized  by  the  increasing 
stress  laid  by  the  peers  upon  peerage  as  the  sole  qualification 
for  membership  of  their  house.  The  judges  were  not  the 
only  victims  of  this  exclusive  principle ;  one  by  one  the  non- 
hereditary  and  conciliar  elements  were  excluded  even  from 
the  subordinate  position  of  advisers  to  the  house.  The 
serjeants-at-law  have  been  abolished;  the  law  officers  of 
the  crown  and  the  masters  in  chancery  have  ceased  to  attend, 
and  privy  councillors  are  reduced  to  standing  on  the  steps 
of  the  throne,  where  they  may  be  seen,  but  may  not  be 
heard.  The  lord  chancellor  and  other  great  officers  of 
state  have  only  been  retained  by  the  practice  of  forcing  upon 
them  the  livery  of  the  peerage ;  and  the  bishops  alone  remain 
to  testify  that  a  reputation  for  wisdom  was  once  considered 
a  necessary  qualification  for  membership  of  the  king's  great 
council  in  parliament.  Even  they  have-  suffered.  They 
have  been  denied  the  status  of  peerage,  notwithstanding 
their  assertion  in  parliament  in  1352  that  they  were  peers 
for  precisely  the  same  reason  as  earls  and  barons ;  ^  and  the 
grounds  for  this  astonishing  denial  are  worthy  of  it.  Bishops 
do  not  inherit  their  bishoprics,  but  attain  them  by  merit; 
and  if  they  commit  treason  or  felony,  they  are  not  tried  by 
the  peers. 2  The  house  seems  to  have  based  itself  on  the 
reason  for  which  Palmerston  approved  of  nomination  for 
the  civil  service :  "  there  was  no  damned  merit  about  it." 
The  bishops  survived  this  attack  on  their  dignity,  but  not 
without  loss.  Their  number  had  been  reduced  to  com- 
parative insignificance  by  the  enormous  creations  of  temporal 
peers,  and  they  formed  but  a  twentieth  part  of  the  house 
in  the  nineteenth  century.  But  the  possibility  of  increasing 
this  exiguous  figure  alarmed  the  temporal  peers  or  their 
nonconformist  supporters ;  and  in  1847  ^  it  was  enacted 
that,  however  much  bishops  might  multiply,  their  seats  in 

^  See  above,  p.  65.  This  principle  had  been  laid  down  in  the  Constitu- 
tions of  Clarendon  :  "  archiepiscopi,  episcopi  .  .  .  habent  possessiones 
suas  de  domino  rege  sicut  baroniam,  et  inde.  .  .  .  sicut  barones  ceteri, 
debent  interesse  curiae  domini  regis  cum  baronibus  "  (c.  xi). 

2  The  reason,  of  course,  was  that  in  the  middle  ages  the  prelates  had 
claimed  the  higher  privilege  of  being  tried  by  spiritual  men  in  the 
ecclesiastical  courts. 

2  10  &  II  Vict.,  c.  108;  Makower,  pp.  211-12. 


312  THE  EVOLUTION  OF  PARLIAMENT 

the  lords  should  never  exceed  twenty-six.  The  two 
archbishops  and  the  bishops  of  London,  Durham,  and 
Winchester!  are  always  members  of  the  house,  but  the 
rest  have  to  wait  until  the  chances  of  seniority  entitle  them 
to  rank  with  those  whose  wisdom  comes  by  birth. 

Logic  is  not  perhaps  an  important  ingredient  in  political 
institutions,  but  defiance  of  logic  has  been  carried  to  extremes 
in  the  house  of  lords.  It  claims  to  be  founded  on  right, 
but  it  has  made  havoc  of  that  right  by  its  own  resolutions. 
Episcopacy  entitles  some,  but  not  other  bishops  to  sit; 
peerage  entitles  a  peer  in  England  to  sit,  but  not  one  in 
Scotland  or  Ireland,  unless  he  is  also  elected.  The  crown 
could  create  as  many  peers  in  perpetuity  as  it  pleased,  but 
it  could  not,  until  1887,  create  a  single  peer  for  life.^  It 
could  **  ennoble  "  a  man's  blood  and  limit  its  flow  to  eldest 
sons ;  but  it  could  not  exert  discretion  in  the  sending  out  writs 
of  summons  which  no  one  else  could  issue.  Inasmuch  as  no 
mention  was,  naturally,  made  of  heirs  in  the  writs  of  summons 
by  which  peers  were  first  begotten,  the  house  of  lords  has 
presumed  that  descent  was  intended  to  heirs-general,  whereas 
when  descent  is  first  suggested  in  the  creation  of  peers  by 
letters  patent,  it  is  only  to  heirs  male ;  so  that  the  heirs  of 
a  man  who  was  never  intended  to  have  a  hereditary  peerage 
are  better  provided  than  those  of  one  who  was.  The  house 
of  lords  is  not,  in  fact,  founded  on  any  principle ;  its  basis 
is  a  patchwork  of  legal  fictions,  inconsistent  rights,  illogical 
decisions,  and  palpable  absurdities.  It  represents  an 
attempt  to  reduce  the  variant  ideas  and  conditions  of  different 
ages  within  the  compass  of  a  legal  formula,  and  to  erect  that 
formula  into  an  absolute  right  defined  and  definable  by  its 
possessors  alone. 

That  autonomy  claimed  by  the  peers  has  fortunately 
never  become  the  law  of  the  land;    and  their  attempts  to 

1  These  three  bishoprics  are  given  precedence  over  the  others  by 
31  Henry  VIII,  c.  lo.  ^ 

2  The  Appellate  Jurisdiction  Act  of  1876  gave  the  crown  power  to 
cr^te  two  lords  of  appeal  in  ordinary,  and  to  summon  them  to  sit  and 
vote  in  the  house  of  lords  so  long  as  they  fulfilled  their  judicial  functions; 
m  1887  this  period  was  extended  to  the  term  of  their  lives. 


THE  PEERS  IN  PARLIAMENT  313 

limit  by  statute  the  crown's  power  of  creation  have  always 
been  defeated.  The  crown  cannot,  it  is  true,  create  more 
than  a  hmited  number  of  Scottish  and  Irish  peers;  and  it 
cannot  create  any  English  peers  (as  distinct  from  peers  of 
the  United  Kingdom)  at  all.  Nor  can  it  add  to  the  number 
of  bishops  in  parliament.  But  these  restrictions  on  the 
peerage  have  little  reference  to  the  composition  of  the  house 
of  lords.  No  creation  of  Scottish  or  Irish  peers  would  add  to 
the  number  entitled,  by  the  respective  acts  of  union,  to 
election  as  representative  peers ;  and  there  are  obvious  limits 
to  the  erection  of  episcopal  sees.  More  serious  was  the 
peerage  bill,  which  was  passed  by  the  lords  in  1719,  and  only 
thrown  out  by  the  commons  on  a  division  after  a  masterly 
speech  by  Walpole.  By  one  of  the  ironies  of  history  the 
Tories  had,  in  1712,  provided  the  only  precedent  for  the 
creation  of  peers  with  the  express  purpose  of  carrying  a  bill 
in  the  house  of  lords ;  and  the  Whigs  in  1719  attempted  to 
make  its  repetition  impossible  by  providing  that  the  crown 
should  never  create  more  than  six  new  peers  at  a  time.  It 
has  been  thought  that  the  success  of  the  peerage  bill  would 
have  prevented  reform;  it  would  certainly  have  promoted 
revolution,  from  which  the  country  was  only  saved  in  1832 
by  the  power  of  the  crown  to  create  in  the  last  resort  suffi- 
cient peers  to  override  the  opposition  of  the  house  of  lords. 
The  crisis  recurred  in  191 1  in  the  same  form ;  and  the  same 
arguments  and  even  the  same  phraseology  were  used  as  in 
1832. 

The  problem  of  the  house  of  lords  has  been  complicated 
by  the  fact  that  peerage  has  from  first  to  last  been  a  social, 
rather  than  a  political  question,  and  its  intrusion  into 
parliament  was  as  much  an  anomaly  as  the  attempted 
intrusion  of  an  estate  of  merchants  in  the  fourteenth 
century.  From  the  sixteenth  century  onwards  no  states- 
man gained  politically  by  translation  from  the  house  of 
commons  to  the  house  of  lords ;  and  from  Walpole's  time  a 
seat  in  the  house  of  lords  has  been  regarded  as  a  positive 
^jrawback  to  political  ambition.  Front-rank  politicians 
only  accept  promotion  to  it  as  a  sacrifice  in  the  interests  of 


314  THE  EVOLUTION  OF  PARLIAMENT 

their  party,  as  an  easy  stage  on  the  road  to  retirement,  or  as 
social  gilt  for  a  vice-royalty  or  dominion  governorship.  It 
is  for  its  social,  rather  than  for  its  political  attractions 
that  a  peerage  is  sought,  and  it  is  sought  most  keenly  by 
those  who  feel  the  need  of  social  status.  The  few  instances 
in  which  it  has  been  used  as  a  reward  for  distinguished 
service,  as  a  means  of  providing  for  the  conduct  of  the 
business  of  liberal  governments  in  the  house  of  lords,  or 
as  an  expedient  to  secure  a  place  in  parliament  for  wisdom 
which  shrinks  from  the  turmoil  of  popular  election,  are  only 
exceptions  to  the  general  rule.  The  political  responsibilities 
which  once  attached  to  peerage  are  commonly  evaded; 
the  work  of  the  house  of  lords  is  done  by  a  tenth  of  its 
members ;  and  the  abstention  of  the  rest  is  as  much  a  political 
portent  as  was  the  avoidance  of  parliament  by  the  great 
majority  of  abbots  during  the  later  middle  ages.  Whatever 
form  the  reconstruction  of  the  house  of  lords  may  take,  it 
would  be  well  to  guard  against  a  political  trust  being  treated 
as  a  means  of  social  gratification. 

Meanwhile  the  house  lingers  on  under  sentence  of  death. 
The  preamble  to  the  parliament  act  of  1911  held  out  a 
promise  of  reconstitution  of  which  more  urgent  affairs 
have  postponed  the  fulfilment ;  and  the  party  truce  following 
on  the  war  precluded  discussion  of  even  the  principles  of 
reconstruction.  One  or  two  points  are,  however,  almost 
beyond  the  stage  of  debate.  It  has  been  pretended  that  the 
principle  of  primogeniture  could  not  logically  be  excluded 
from  the  house  of  lords  and  retained  in  the  monarchy; 
and  it  is  true  that,  if  the  political  claims  of  the  crown  and  the 
house  of  lords  were  identical,  the  principles  which  deter- 
mine their  position  could  not  be  divorced.  But  the  Stuarts 
were  ejected  from  the  throne  because  they  clung  so 
tenaciously  to  what  they  regarded  as  their  hereditary 
rights,  and  the  crown  has  remained  hereditary  only  because 
it  has  abandoned  its  veto  on  legislation.  Had  the  house  of 
lords  practised  a  similar  self-restraint,  its  hereditary  basis 
would  have  been  equally  secure. 

Such  inactivity  would  have  been  the  negation  of  what  the 


THE  PEERS   IN  PARLIAMENT  315 

house  of  lords  considers  its  proper  function  as  a  second 
chamber.  The  difficulty  is  that  poHtical  powers,  even  those 
of  a  second  chamber,  cannot  be  divorced  from  responsibihty, 
and  hereditary  right  is  incompatible  with  responsible  rule. 
That  is  why  James  II  fled  to  France  in  1688  and  the  peers 
were  compelled  to  pass  the  parliament  act  in  1911.  No 
second  chamber  which  claims  a  right  of  veto  can  nowadays 
be  based  on  anything  but  popular  election.  But  a  second 
chamber  may  be  very  useful  without  merely  obstructing 
the  work  of  the  first ;  and  there  is  ample  scope  in  modern 
legislation  for  revision,  suggestion,  and  amendment  without 
the  right  of  rejection.  Such  work  might  well  be  done  by  a 
non-elective  body  of  experts,  whose  advice  would  be  wel- 
comed so  long  as  it  was  not  givfen  by  way  of  dictation.  Nor 
is  it  indispensable  that  the  two  chambers  of  parliament 
should  both  cover  the  same  and  entire  field  of  activity.  One 
of  the  old  distinctions  between  council  and  parliament  was 
that  the  council  could  regulate  foreign  relations,  while 
parliament  controlled  domestic  affairs. ^  The  house  of 
commons  is  little  adapted  for  the  work  of  diplomacy ;  and 
foreign  policy  is,  as  a  matter  of  fact,  settled  by  agreement 
between  a  few  politicians  on  the  two  front  benches.  The 
committee  of  imperial  defence  is  a  more  formal  expression 
of  the  same  political  necessity ;  and  there  seems  no  adequate 
reason  why  these  two  functions  should  not  be  associated 
with  a  small  and  efficient  second  chamber.  It  is  not  essential 
to  the  maintenance  of  the  party  system  that  party  lines 
should  overrun  the  whole  field  of  domestic,  imperial,  and 
foreign  politics;  and  some  discrimination  is  inevitable  if 
the  common  sentiment,  which  pervades  the  British  realms 
and  transcends  their  party  divisions,  is  ever  to  find  an 
organized  expression  in  a  common  imperial  government. 
Congenital  disqualifications  have  impaired  the  health  of 
the  second  limb  of  the  body  politic,  and  it  might  well  be 
made  the  subject  of  an  imperial  operation. 

*  Lords'  Journals,  i.  56. 


CHAPTER  XVI 

THE  COMMONS   IN   PARLIAMENT 

In  the  middle  ages  the  commons  only  appeared  "  in 
parliament  "  with  the  Speaker  at  their  head,  and  save  for 
his  orations  they  were  dumb.  To-day  when  men  talk  of 
parliament,  in  nine  cases  out  of  ten  they  are  thinking  of  the 
house  of  commons ;  and  to  say  that  the  house  of  commons 
wields  nine-tenths  of  the  sovereignty  of  parliament  is  an 
under-  rather  than  an  over-statement  of  the  truth.  This 
predominance  is  almost  entirely  the  result  of  growth 
during  the  last  four  centuries;  for,  in  spite  of  the 
idealistic  pictures  drawn  of  the  constitutional  progress  of 
the  commons  during  the  fourteenth  century,  their  position 
at  the  end  of  the  fifteenth  was  precarious,  and  there  seemed 
no  obvious  reason  why  they  should  not  fall  into  the  same 
condition  of  impotence  or  abeyance  as  third  estates  in 
France  and  Germany,  the  Netherlands  and  Spain.  Not 
only  did  parliaments  grow  less  frequent,^  but  the  number 
of  members  showed  an  alarming  tendency  to  shrink,  and 
whereas  Edward  I  summoned  322  representatives  of  cities 
and  boroughs,  Henry  VI  in  1445  summoned  but  198. 

The  deductions  which  have  been  drawn  from  the  writs  of 
summons  and  the  returns  thereto  ^  may,  however,  be  wrong 
in  this  respect,  as  they  certainly  are  with  regard  to  the  size 
of  a  medieval  house  of  commons.  Just  as  there  was  many 
a  shp  between  judgement  and  execution,  so  there  was  a 
considerable  hiatus  between  a  member's  return  in  the 
sheriff's  writ  and  his  bodily  presence  in  parliament ;  and  an 

^  See  above,  p.  131. 

*  Official  Return  of  Members  of  Parliament  {1878),  pt.  i. 
316 


THE  COMMONS  IN  PARLIAMENT  317 

examination  of  other  records  suggests  that  the  members 
elected  were  regarded  merely  as  a  panel  from  which  a  far 
smaller  attendance  was  actually  secured.  These  other  records 
are  the  writs  de  exfensis}  which  members  who  did  attend 
sued  out  to  recover  their  wages  and  their  expenses  from 
their  constituencies.  They  are  careful  documents,  giving  the 
exact  number  of  days  during  which  members  served  on  their 
journeys  and  at  Westminster,  and  the  sums  vary  with  the 
distance  from  London  of  the  different  constituencies.  A 
comparison  of  the  details  they  provide  with  the  official 
return  of  elections  reveals  a  startling  discrepancy.  The 
number  of  members  "  returned  "  to  a  fourteenth-century 
house  of  commons  was  over  three  hundred ;  the  number  of 
those  who  actually  attended,  according  to  the  writs  de 
expensis,  was  seldom  a  hundred,  and  never  more  than  a 
hundred  and  thirty.  To  these  the  shires  contributed  their 
regular  seventy-four — ^two  knights  for  each  of  the  thirty- 
seven  shires;  but  the  cities  and  boroughs  whose  names 
occur  during  the  fourteenth  century  vary  in  number  from 
five  to  twenty-four. 

It  might  be  thought  that  these  writs,  as  entered  on  the 
close  rolls,  are  defective,  that  many  burgesses  were  too 
proud  and  independent  to  claim  their  wages,  and  that  their 
numbers  may  have  been  far  larger  than  these  writs  indicate. 
But  there  are  no  voids  in  the  writs  obtained  by  knights  of 
the  shire,  and  if  these  landed  gentry  were  not  too  proud  to 
claim  their  wages,  the  business-like  burgesses  can  hardly 
be  credited  with  contempt  for  such  considerations.  London 
and  York,  it  is  true,  made  their  own  arrangements  for  feeing 
their  members  without  recourse  to  these  writs,  York  paying 
its  members  double  the  usual  rate ;  ^  and  a  similar  arrange- 
ment may  account  for  the  absence  of  Bristol,  Winchester, 


1  These  are  entered  on  the  Close  Rolls,  which  have  now  been  calendared 
for  nearly  the  whole  of  the  fourteenth  century. 

2  Davis,  York  Records,  p.  15;  on  p.  138  the  York  members  are  described 
a  "  citizens  and  knights  of  the  parliament  for  this  honourable  city  and 
shire."  On  June  6,  1483,  Richard  III  ordered  four  members  to  be 
returned  for  York,  and  four  were  elected,  contrary,  says  Mr.  Davis,  to 
all  precedent. 


3i8  THE  EVOLUTION  OF  PARLIAMENT 

Salisbury,  Southampton,  Norwich,  and  Yarmouth  from  the 
writs  de  expensis.  The  Cinque  Ports  also  do  not  figure  in 
them ;  but  although  summoned  from  1295  they  apparently 
made  no  return  until  1366,  and  a  return  to  the  writ  is  no  proof 
of  actual  presence  at  Westminster.  When  we  find  Oxford, 
Canterbury,  Newcastle,  Hull,  Cambridge,  Northampton, 
Nottingham,  Portsmouth,  Lincoln,  Leicester,  Gloucester, 
Derby,  Bedford,  Rochester,  Southwark,  Warwick,  Wor- 
cester, Exeter,  Ipswich,  Shrewsbury,  Stafford,  and  Carlisle 
among  the  cities  and  boroughs  to  which  writs  de  expensis 
were  addressed,  it  is  difficult  to  discover  more  than  half  a 
dozen  constituencies  to  put  with  London,  York,  and  the 
Cinque  Ports,  as  making  their  own  arrangements  and  thus 
adding  largely  to  the  numbers  given  in  the  writs.  Save  for 
these  exceptions  those  writs  may  be  taken  as  a  fairly 
accurate  indication  of  the  size  of  the  house  of  commons. 

On  their  showing  the  fullest  house  of  commons  in  the 
fourteenth  century  was  in  the  famous  Good  parliament  of 
1376,  But  even  then  only  twenty-two  cities  and  boroughs 
appear  on  the  writs  de  expensis ;  and  the  addition  of 
London,  York,  and  half  a  dozen  others  would  bring  up  the 
total  attendance  to  134  members,  sixty  from  the  cities  and 
boroughs,  seventy-four  from  the  shires.  It  is  perhaps 
significant  that  the  parliament  which  most  nearly  equalled 
these  numbers  was  that  of  1311,  when  a  similar  attempt  was 
made  by  the  lords  ordainers  to  restrain  the  crown.  Twenty- 
one  boroughs  on  that  occasion  received  writs  de  expensis ;  ^ 
but  on  no  other  occasion  during  the  century  did  the  number 
exceed  twenty.  There  were  eighteen  in  the  parliament  of 
February  1371,  sixteen  in  that  of  1362,  fifteen  in  135 1  and 
1358,  and  thirteen  in  1352  and  1357.  In  other  years  the 
figure  descends  to  eleven,  nine,  eight,  six,  and  five,  six  being 
the  most  frequent  number.  After  the  Good  parliament 
there  is  some  improvement  in  numbers  and  a  great  increase 
in  regularity ;  and  in  the  six  succeeding  parliaments  2  the 
boroughs  receiving  writs  de  expensis  were  never  fewer  than 

J  Cal.  Close  Rolls,  1307-13,  p.  440;  Tout,  Edward  II,  pp.  89-90,  104. 
1377  (two  parliaments),  1378,  1379,  1380  (two  parliaments). 


THE  COMMONS  IN  PARLIAMENT  319 

eleven  nor  more  than  thirteen.  But  these  cities  and 
boroughs  are  not  by  any  means  the  same.  Thirty-eight 
boroughs  in  all  appear  in  the  writs  for  one  or  more  of  these 
six  parhaments;  but  Oxford  alone  is  represented  in  all. 
No  other  borough  appears  in  more  than  four  of  these 
parliaments;  nineteen  of  them  send  representatives  only 
to  one,  and  ten  only  to  two,  though  the  attendance  from 
cities  and  boroughs,  which  made  their  own  bargain  with 
members,  was  probably  far  more  regular. 

These  figures  explain  some  familiar  facts  and  suggest  some 
novel  reflections.  They  help  to  account  for  the  predominance 
of  the  knights  of  the  shire  in  the  medieval  house  of  commons, 
and  for  the  fact  that  the  house  of  commons — domus  com- 
munitatum — really  means  house  of  the  shires.  When 
seventy-four  knights  were  regularly  present,  and  the  number 
of  burgesses  varied  from  sixty  to  twenty-six,  numbers  and 
regularity  of  attendance  combined  with  social  superiority 
to  give  the  knights  control  of  the  house.  They  also  explain 
how  the  house  found  room  for  its  sessions  in  the  chapter 
house  of  Westminster  abbey.  But  more  important  is  the 
light  they  throw  on  the  position  of  medieval  parliaments. 
Reluctance  to  attend  was  not  an  isolated  phenomenon,  but 
a  general  and  successful  attitude.  Constituencies  accepted 
taxation  to  which  their  absence  gave  consent,  rather  than 
send  and  pa^^  members  to  protest ;  and  only  in  imagination 
can  medieval  parliaments  be  regarded  as  representative  of 
a  nation.  They  were  mere  representative  specimens,  and 
aloofness  from  national  affairs,  rather  than  participation  in 
them,  was  the  characteristic  of  the  age.  We  have  thus  to 
alter  the  perspective  in  our  views  of  constitutional  develop- 
ment. The  activity  of  parliaments  from  the  middle  of  the 
fourteenth  to  the  middle  of  the  fifteenth  centuries  was 
transitory  and  unsubstantial ;  it  was  due  to  the  weakness 
of  the  monarchy  and  the  factions  of  the  peerage,  and 
was  not  based  upon  any  broad  national  ambition  for  self- 
government  or  sense  of  political  responsibility.  Political 
consciousness  was  active  among  the  landed  gentry  of  the 
fourteenth  century,  and  the  petitions  of  the  Good  parliament 


320  THE  EVOLUTION  OF  PARLIAMENT 

express  their  ideas  as  Magna  Carta  does  those  of  the  greater 
barons.  But  middle-class  politics  could  not  develop  until 
far  more  than  a  score  of  cities  and  boroughs  would  trouble 
to  send  their  spokesmen  year  in  and  year  out  to  Westminster ; 
and  the  Lancastrian  Fortescue  who  wrote  at  the  end  of  the 
period  has  nothing  to  say  of  the  constitutional  importance 
of  the  house  of  commons. 

It  was  a  slow  growth,  and  its  birth  must  be  connected  with 
that  general  stirring  of  national  impulse  in  EngHsh  bones 
of  which  Wycliffe,  Langland,  and  Chaucer  were  some  of  the 
exponents.  A  desire  for  self-expression  in  English  language 
and  literature  was  followed  by  a  desire  for  self-expression  in 
English  politics ;  and  the  generation  which  saw  the  founding 
of  schools  like  Winchester  and  Eton,  and  a  dozen  colleges 
at  Oxford  and  Cambridge,  also  witnessed  the  beginnings  of 
a  political  efflorescence.^  It  was  not  a  renaissance,  for  there 
is  no  evidence  that  the  lower  classes  in  England  had  ever 
desired  expression  before;  their  legal  designation  was 
"  cattle,"  and  it  is  probable  that  that  was  a  truer  description 
than  our  romanticists  would  have  us  believe.  It  is  assumed 
rather  than  proved  that  the  mass  of  these  "  chattels  "  were 
baptized  in  the  early  middle  ages  or  regarded  as  having 
souls  of  their  own.  The  peasants'  revolt  of  1381  is  their 
first  expression  in  politics,  and  it  did  not  stand  alone.  The 
Lancastrian  statutes  limiting  the  country  franchise  to  forty- 
shilling  freeholders  are  only  intelligible  on  the  assumption 
that  villeins  had  begun  to  undertake  an  attendance  at 
county  courts  which  their  betters  had  thought  a  burden. 
Municipal  and  even  national  records  were  beginning  to  be 
kept  in  a  language  they  understood,  and  their  economic 
emancipation  was  followed  by  their  intrusion  into  politics. 

Only,  of  course,  a  minority  of  villeins  rose  to  reinforce 
the  freeholders  and  stimulate  the  middle  class;  but  it  is 
at  one  of  the  lowest  ebbs  in  Enghsh  politics,  the  middle 
of  Henry  VI's  reign,  that  we  can  trace  the  beginning 
of  the  flow  of  popular  interest  in  politics.  The  writs  of 
summons  to  parliaments  issued  by  Edward  I  had  been 
^  See  above,  p.  157. 


THE   COMMONS  IN  PARLIAMENT  321 

admonitions  from  above;  and  the  inertia  of  the  mass  to 
which  they  were  addressed  caused  a  steady  decUne  in  their 
number.  But  about  1445  the  tide  begins  to  turn.  Hitherto 
the  desire  had  been  to  escape  the  burden  of  representation, 
but  now  new  boroughs  begin  to  send  members  to  parHament, 
and  within  a  generation  the  number  of  burgesses  returned 
rose  from  198  to  224.  The  number  of  new  boroughs  created 
in  Wiltshire  suggests  a  connexion  with  the  growth  of  clothing 
towns  in  that  county.  More  marked  was  the  growth  in 
actual  attendance ;  and  within  a  century  the  miserable  two 
or  three  score  of  borough  members  who  had  feebly  supported 
the  knights  of  the  shire  had  swollen  to  some  two  hundred  or 
more.^  In  1533  a  borough  member  was  for  the  first  time 
elected  Speaker  of  the  house  of  commons,^  and  from  the  reign 
of  Henry  VHI  there  is  no  discernible  distinction  in  dignity 
or  influence  between  a  knight  of  the  shire  and  a  borough 
member.  Thomas  Cromwell  sat  for  Taunton  and  William 
Cecil  for  Stamford,  though  doubtless  the  eminence  of  these 
borough  representatives  was  due  to  the  weakness  of  feudal, 
and  strength  of  monarchical,  influence  in  the  boroughs  as 
well  as  to  the  growing  political  weight  of  the  middle 
classes. 

The  house  of  commons  had  become  a  place  of  importance. 
In  1455  the  Duchess  of  Norfolk  had  written  of  the  need  of 
securing  the  election  of  members  who  belonged  to  her 
husband  and  were  his  **  menial  servants."  ^  But  it  was 
Henry  VIII  who  thrust  the  house  of  commons  into  political 
prominence.  Before  1529  there  is  hardly  a  reference  to  its 
proceedings  in  the  dispatches  of  any  foreign  diplomatist  or 

1  The  figures  given  by  contemporary  writers  are  always  grossly 
exaggerated.  In  1549  the  privy  council  itself  speaks  of  nearly  four 
hundred  members  being  present  in  the  house  of  commons  {Acts  of  Privy 
Council,  ii.  260) ;  but  the  recorded  divisions  in  the  house  seldom  reach  three 
hundred  votes  in  the  sixteenth  century.  On  19  April,  1554,  however, 
321  members  took  part  in  a  division,  and  in  1555  the  bill  to  restore 
firstfruits  and  tenths  was  carried  by  193  to  126  votes;  in  1593  the 
commons  agreed  with  Bacon's  views  on  the  financial  relations  between 
the  two  houses  by  217  to  128  votes,  and  this  would  appear  to  have  been 
the  biggest  division  in  Tudor  times. 

2  Humphrey  Wingfield,  M.P.  for  Yannouth.  T.  Williams,  Speaker  in 
1562-3,  was  M.P.  for  Exeter. 

8  Paston  Letters,  i.  337. 
Y 


y 


322  THE  EVOLUTION  OF  PARLIAMENT 

observer;  from  that  time  onwards  the  correspondence  of 
French,  Venetian,  and  Spanish  ambassadors  becomes  one 
of  the  main  sources  of  parHamentary  history,  and  papal 
nuncios  and  imperial  envoys  vie  with  one  another  in  trying 
to  influence  its  decisions.  With  nearly  half  the  peers,  and 
at  least  four-fifths  of  the  clergy  against  him,  Henry  had 
^  need  of  the  house  of  commons,  and  he  cultivated  it  with 
sedulous  care.  The  commons  had  always  been  the  main 
source  of  petitions  to  the  crown,  and  it  was  an  obvious 
tactical  advantage  if  Henry's  desires  could  come  before  the 
lords  of  the  council  in  parhament  in  the  guise  of  petitions 
or  bills  from  the  commons.  It  would  appear  from  Lord 
Darcy's  complaint  in  1536  ^  that  the  lords  had  developed 
the  practice  of  securing  from  the  masters  in  chancery  copies 
of  bills  and  petitions  before  they  were  read  in  the  commons, 
and  even  of  pronouncing  on  their  admissibility.  This  prac- 
tice was  now  discouraged,  and  henceforth  Tudor  and  Stuart 
sovereigns  used  the  Speaker,  and  not  the  lords  of  the 
council  in  parliament,  as  the  medium  for  expressing  their 
views  on  the  propriety  of  bills  which  members  sought  to 
introduce.  It  was  to  the  interest  of  the  crown  to  shift  the 
balance  of  legislative  power  from  the  lords  to  the  commons  ; 
and  in  1536  the  Speaker  is  first  recorded  to  have  asked  for 
access  on  behalf  of  himself  and  of  his  colleagues  to  the 
king  in  person. ^ 

The  result  was  an  enormous  increase  in  the  prestige  of  the 
lower  house.  Its  domestic  proceedings  had  never  appeared 
on  the  rolls  of  parliaments,  but  in  or  soon  after  1547  ^ 
it  began  to  keep  Journals  of  its  own.  The  eldest  sons  of 
peers  thought  it   becoming  to  seek   election;*   magnates 

»  Letters  and  Papers  of  Henry  VIII,  xii.  pt.  i.  410 ;  Dodds,  The  Pilgrimage 
of  Grace,  1915,  i.  360, 

2  Lords'  Journals,  i.  86,  167;  Elsynge,  p.  176. 

3  The  extant  Journals  begin  with  1547,  but  probably  the  record  was 
not  compiled  until  later  in  Edward  VI's  reign. 

*  Two  of  the  earliest  instances  were  Francis  Russell,  eldest  son  of  the 
first  Earl^  of  Bedford,  who  was  M.P.  for  Buckinghamshire  1544-52 
{Commons  Journals,  i.  15),  and  Francis,  eldest  son  of  the  second  earl,  who 
was  M.P  for  Northumberland  in  1572.  Cf.  Sir  R.  Bagnal's  request  for  a 
seat  to  the  Earl  of  Rutland  on  the  ground  that  he  wanted  "for  his 
learning  s  sake  to  be  made  a  parliament  man  "  {Rutland  MSS.,  i.  207). 


THE   COMMONS  IN   PARLIAMENT  323 

bought  up  boroughs  to  provide  themselves  or  their  friends 
with  seats,  and  were  besieged  with  apphcations  for  their 
influence.  Candidates  began  to  pay,  instead  of  being  paid 
for  election.^  Boroughs  which  had  let  their  representation 
fall  into  abeyance  sought  for  its  restoration,  and  those  which 
had  never  had  writs  began  to  seek  them.^  Lawyers  and 
other  aspiring  politicians  went  about  looking  for  seats,  and 
the  obhgation  of  residence  was  ignored  in  spite  of  the  rejec- 
tion by  the  house  of  commons  of  a  bill  to  relax  it  in  1571.^ 
Parliament  was  providing  a  career,  and  in  Elizabeth's  reign 
we  hear  for  the  first  time  of  some  one  being  a  *'  great 
parliament  man  "  *  who  was  not  a  member  of  the  privy 
council.  A  score  of  members  in  Ehzabeth's  reign  made 
names  for  themselves  throughout  England  by  what  they 
said  and  did  in  the  house  of  commons. 

The  growth  of  the  house  of  commons  was  reflected  in  the 
expansion  of  its  numbers,  the  increase  of  popular  interest 
in  elections  and  in  the  proceedings  of  the  house,  and  in  the 
development  of  its  privileges  and  powers.  Wales,  Cheshire, 
Berwick,  and  Calais  were  brought  within  the  sphere  of 
parliamentary  representation,  and  the  creation  of  new 
boroughs  was  slightly,  if  at  all,  due  to  the  crown's  desire 
to  pack  the  house.  Under  Henry  VII  and  Henry  VIII 
forty-five  new  members  were  added,  under  Edward  VI 
thirty,  under  Mary  twenty-seven,  and  under  EHzabeth  fifty- 

*  The  first  known  case  of  bribing  electors  occurred  in  15  71,  when 
Thomas  Long,  "  being  a  very  simple  man,"  gave  the  mayor  and  another 
citizen  of  Westbury  £/^  to  secure  his  election  {Commons'  Journals,  i.  88; 
D'Ewes,  p.  182).  No  returns  have  been  found  for  this  parliament.  The 
mayor  and  his  colleague  in  corruption  were  condemned  to  restore  the  £/[ 
to  Long  and  pay  ;^20  to  the  Queen,  Long  himself  was  simultaneously 
put  in  the  pillory,  not  for  this  affair,  but  for  reporting  the  Queen's  death 
(Hooker's  "  Journal  of  the  House  of  Commons  "  in  Trans,  Devon.  Assoc, 
xi.  483).  In  the  same  session  the  house  was  troubled  by  reports  of  the 
bribery  of  its  members  (ibid.,  p.  488;  Commons'  Journals,  i.  93).  For 
an  attempt  to  bribe  a  member  in  Edward  IV's  reign  see  Trans.  Devon. 
Assoc,  xlvi.  481. 

2  State  Papers.  Dom.  Eliz.,  xxvii.  23-4;  Commons'  Journals,  i.  83; 
D'Ewes,  pp.  156-7,  159.  It  was  owing  to  the  learning  and  activity  of 
William  Hakewill  (see  D.N.B.)  that  several  boroughs  recovered  their 
representation. 

3  Commons'  Journals,  i.  84-5;  D'Ewes,  pp.  160,  168-71 ;  the  debate  as 
reported  in  D'Ewes  is  of  exceptional  interest. 

*  Rutland  MSS.,  i.  130. 


324  THE  EVOLUTION  OF  PARLIAMENT 

nine.  From  297  members  at  the  accession  of  Henry  VIII 
the  house  had  grown  to  458  by  the  death  of  EHzabeth.i 
There  is  evidence,  too,  that  the  number  of  electors  who  par- 
ticipated in  the  choice  of  their  members  largely  increased, 
though  this  is  more  marked  in  the  county  than  in  the  borough 
elections.  In  the  boroughs  the  franchise  was  generally  at 
the  beginning  of  the  Tudor  period,  and  it  remained  to  the 
end,  confined  to  members  of  the  borough  council ;  ^  and  it 
was  not  until  the  days  of  the  Long  parliament  that  we  find 
instances,  like  that  of  Reading,  where  the  number  of  electors 
leapt  up  from  a  dozen  to  over  a  thousand.^  At  the  county 
elections  there  were  large  and  tumultuous  gatherings,* 
sometimes  ending  in  riots,  in  proceedings  before  the  privy 
council,  and  in  disputes  between  chancery  and  the  commons 
over  the  decision  of  election  petitions.^ 

These  contests  were,  perhaps,  as  much  the  embers  of  local 
faction  as  the  dawn  of  national  politics;  and  although  in 
Henry  VIIFs  reign  members  were  told  to  discuss  with  their 
constituents  what  they  had  seen  and  heard  at  Westminster, 
any  instructions  given  by  constituencies  to  their  representa- 
tives seem  to  have  been  of  purely  local  interest.^  The  idea 
of  deciding  questions  of  national  policy  by  reference 
to  the  electors  can  hardly  be  traced  before  1640;  and 
the  parliamentary  debates  on  monopolies  at  the  end  of 

*  See  above,  pp.  162-3. 

*  See  my  Reign  of  Henry  VII,  ii.  181-9;  Davis,  York  Records,  p.  138; 
W.  J.  Harte  in  Trans.  Devon.  Assoc,  xliv.  206,  xlv.  409-10. 

3  Reading  MSS.,  Hist.  MSS.  Comm.,  nth  Rep.  App,,  vii.  187, 189, 192-4 ; 
cf.  Guilding,  Reading  Records,  iii.  488-9,  507,  iv.  167-8,  171-2,  298-9. 

*  Letters  and  Papers,  x.  1063;  Townshend,  Collections,  pp.  22,  286,  295, 
298-9,  329-30-  A  realistic  account  of  "  the  tumult  and  tempest "  of  a 
poll  in  1623  is  given  in  the  Stiffkey  Papers  (Camden  Soc),  p.  41,  where  a 
candidate  "  sounded  his  troupes  againe  ,  .  .  and  caused  all  his  forces  to 
charge,"  and  secured  election  by  very  literally  "  routing  "  his  opponents. 

^  See  the  Maidstone  and  Norfolk  election  disputes,  fully  reported  in 
D'Ewes,  pp.  393-7- 

^^  «  Letters  and  Papers,  v.  1 71 .  An  excellent  example  of  a  sixteenth-century 
"  mandate  "  from  a  constituency  to  its  members  is  given  by  Prof.  W.  J. 
Harte  in  Trans.  Devon.  Assoc,  xliv.  213  :  "A  remembrance  of  certeyn 
articles  for  Mr.  Thomas  Williams  and  Mr,  Geffray  Tothill,  burgesses  for 
the  Citie  [of  Exeter]  at  the  parlayment  in  January,  1562."  W^illiams  was 
elected  Speaker  in  that  parliament,  and  was  given  ;^20  by  the  corporation 
for  his  services  "m  preferring  the  suits  and  business  of  the  City  "  (ibid., 
xlv.  409). 


THE   COMMONS  IN  PARLIAMENT  325 

Elizabeth's  reign  were  apparently  the  earliest  occasion  on 
which  proceedings  in  the  house  of  commons  evoked  any 
popular  agitation.  Cecil  then  heard  cries  in  the  street  : 
"  God  prosper  those  that  further  the  overthrow  of  these 
monopolies;  God  send  the  prerogative  touch  not  our 
liberty  " ;  and  he  remarked  in  the  house  that  some  "  would 
be  glad  that  all  sovereignty  were  converted  into  popularity." 
It  is  ever  the  economic  problem  that  drives  democracy  to 
think  of  politics,  and  even  then  the  thought  is  mainly  a 
matter  of  feeling;  but  it  was  with  a  novel  sensation  of 
horror  that  Cecil  exclaimed  in  the  house  in  1601,  "  Why, 
parliament-matters  are  ordinarily  talked  of  in  the  streets."  ^ 
Hitherto  the  commons  in  parliament  had  had  to  fight 
their  constitutional  battles  without  much  support  from 
outside,  and  the  popular  naval  heroes  of  Elizabeth's  time 
were,  when  they  sat  in  parliament,  always  on  the  side  of 
the  royal  prerogative.^  But  the  corporate  feeling  which 
members  developed  during  the  long  sessions  of  the  Reforma- 
tion and  other  sixteenth-century  parliaments  gave  them  a 
novel  confidence.  The  medieval  sessions  of  two  or  three 
weeks  had  given  little  opportunity  to  members,  who  for  the 
most  part  never  attended  another  parliament,  to  know  one 
another  and  develop  a  common  sense.  But  the  seven  years' 
parliament  of  1529-36,  with  each  of  its  sessions  extending 
over  months,  produced  a  body  of  common  experience,  the 
effect  of  which  was  never  lost ;  and  the  Journals,  commencing 
in  1547,  began  to  record  its  results  and  to  provide  a  firm  hold 
of  precedents  which  gave  solidity  to  the  claims  of  the  house. 
It  assumed,  step  by  step,  control  of  itself  and  its  members ; 
and  privileges,  which  had  been  referred  in  the  fifteenth  century 
to  the  lords  and  the  judges  to  determine,  were  now  asserted 
on  its  own  authority.^  The  right  of  the  Speaker  and  of  the 
house  to  license  the  absence  of  members  was  recognized  by 

1  Townshend,  p.  251 ;  D'Ewes,  p.  653. 

*  E.  g.  Sir  Humphrey  Gilbert,  Sir  Richard  Granville,  Drake,  and  Raleigh. 

'  In  1553  it  was  a  committee  of  the  house  which  decided  that  Alexander 
Nowell,  having  a  seat  in  convocation,  could  not  have  one  in  the  commons. 
For  the  growth  of  capacity  and  outlook  in  the  commons  cf.  the  debate 
on  Goodwin's  case  in  1604,  Commons'*  Journals,  i.  159-60,  939-40. 


326  THE  EVOLUTION  OF  PARLIAMENT 

statute  in  1515.^  In  1553  the  house  insisted  on  inspecting 
the  charter  to  Maidstone,  to  see  if  it  justified  the  novel  appear- 
ance of  burgesses  from  that  town;  pending  its  decision  they 
were  ordered  to  absent  themselves,  and  Maidstone  had  to 
wait  until  1563  to  secure  its  representation. ^  In  1581  the 
house  succeeded  in  establishing  its  control  of  the  issue  of 
writs  for  bye-elections ;  ^  and  it  began  to  compete  with  the 
crown's  powers  of  creation  by  initiating  bills  to  increase 
parliamentary  representation.^  Liberty  of  speech,  which 
had  been  claimed  for  the  Speaker  when  he  appeared  at  the 
head  of  his  colleagues  in  the  parliament  chamber,  was  now  ^ 
claimed  for  the  individual  member  in  the  house  of  commons. 
The  commons,  who  had  been  a  mere  part  of  the  high  court 
of  parliament,  now  claimed  to  be  an  independent  court  of 
record  themselves,^  with  complete  jurisdiction  over  their 
own  members,  their  own  proceedings,  and  their  own  organ- 
ization. From  being  petitioners  themselves,  they  assumed 
the  position  of  arbiters  of  the  petitions  of  others. 

This  is  one  of  the  obscure  but  important  aspects  of  the 
development  of  the  house  of  commons;  and  both  its 
obscurity  and  its  importance  require  some  recapitulation 
in  an  effort  to  elucidate  the  growth  of  the  legislative  func- 
tions of  the  house.  Difficulty  arises  not  merely  from  the 
absence  of  Commons'  Journals  before  1547,  but  from  the 
impossibihty  of  tracing  definite  stages  in  the  growth  of 
customs,  conventions,  and  institutions  which  were  not 
made  and  did  not  proceed  by  definite  steps.     We  have 

»  7  Hen.  VIII,  c.  16. 

*  Commons'  Journals,  i.  25,  63 ;  Official  Return  of  Members  of  Parliament, 

i-  379-404- 

8  D'Ewes,  pp.  281-3,  308. 

*  On  January  i8,  1563,  a  bill  was  introduced  into  the  comm.ons  "  for 
levying  fines  in  the  County  Palatine  of  Durham,  and  to  have  two  knights 
from  thence  into  the  parHament " ;  but  it  reached  the  statute-book 
shorn,  at  some  unknown  stage,  of  the  latter  provision. 

"  The  first  recorded  claim  is  that  made  by  Speaker  Moyle  in  1542  {Lords' 
Journals,  i.  167  ;  Elsynge,  p.  176). 

*  "  This  is  a  court  of  record.  .  .  .  We  have  a  clerk  and  a  register.  .  .  . 
It  is  now  come  to  this  question,  whether  the  chancery  or  parliament 
ought  to  have  authority"  {Commons'  Journals,  i.  159-60).  As  early  as 
1549  the  clerk  of  the  house  of  commons  referred  to  it  as  "this  court" 
{ib.  i.  14). 


THE   COMMONS  IN  PARLIAMENT  327 

also  to  disabuse  our  minds  of  preconceptions  due  to  an 
inevitable  tendency  to  generalize  from  our  evidence  in 
order  to  simplify  our  conclusions.  The  evidence  itself  is 
often  accessible  only  in  a  form  which  fosters  false  assimila- 
tion; and  the  uniformity  of  the  printed  "  Rolls  of  Parlia- 
ments "  obscures  the  diversity  of  their  contents.  Legisla- 
tion may  arise  from  many  different  sources  and  take  many 
different  forms.  Nearly  all  of  it  in  Edward  I's  reign  is 
legislation  by  the  crown  either  on  its  own  motion  or  on 
petition  from  some  other  body  or  individual;  but  no  one 
except  the  villeins  is  precluded  from  access  to  the  freest 
place  in  England,  and  freemen  may  petition  as  individuals 
or  as  any  kind  of  class  or  group.  The  crown  has  just  as 
much  authority  to  grant  redress  to  one  group  without 
consulting  the  others  as  it  has  to  do  justice  to  one  individual 
without  the  leave  of  his  fellows;  it  is  equally  entitled  to 
legislate  without  any  petition  at  all.  Edward  I,  however, 
developed  the  habit  of  doing  these  things  in  parliament, 
and  the  growth  of  the  house  of  commons  depended  largely 
on  its  gradual  establishment  of  a  monopoly  of  access  to  the 
crown  and  of  control  over  the  crown's  responses. 

The  house  could  not  begin  the  process  until  it  had  acquired 
solidarity  and  a  claim  to  be  the  commonalty  of  the  realm. 
But  this  claim  was  secured  during  the  fourteenth  century, 
and  the  commons  proceeded  tentatively  to  assert  an 
influence,  firstly  over  all  petitions  presented  in  parliament, 
and  then  over  the  initiative  of  the  crown.  They  managed 
to  exclude  the  merchants  as  a  separate  estate  from  parlia- 
ment, thus  debarring  their  direct  access  to  the  crown  in 
parliament.  Next  they  successfully  demurred  to  the  crown 
legislating  on  a  clerical  petition  in  parliament  without  their 
concurrence;  and  in  1420  they  petitioned  against  the 
validity  of  bills  endorsed  per  auctoritatem  parliamenti  with- 
out their  assent  or  request.^  Thus  we  find  clerical  petitions 
in  parliament  reduced  in  1429  to  the  vanishing  point  of  a 
single  petition  that  the  clergy  in  convocation  may  enjoy 
the  Uke  privileges  as  the  laity  in  parliament, ^  and  the  clergy 
^  Rot.  Pari.,  iv.  127.  2  jbid,^  iv.  347. 


328  THE  EVOLUTION  OF  PARLIAMENT 

themselves  to  relying  on  the  commons  to  back  and  present 
their  petitions  in  parliament. ^  Individuals,  however  high 
and  mighty,  condescend  to  the  same  assistance — an  arch- 
bishop of  Canterbury,  dukes,  princes,  queens,  and  even 
kings  accept  the  common  fate  with  royal  compensations; 
and  ex  mandaio  regis  ^  bills  of  resumption  and  attainder  and 
provisions  for  the  royal  household  and  royal  family  assume 
the  guise  of  petitions  of  the  commons. 

No  doubt  these  dignities  stooped  to  conquer,  and  their 
submission  was  somewhat  feigned.  It  was  pure  assump- 
tion on  the  commons'  part  to  assert  a  veto  on  royal  legis- 
lation, and  there  was  nothing  in  their  writs  or  in  the  law 
to  justify  the  claim.  The  petition  of  1420  was  refused, 
and  per  auctoritatem  farliamenti  long  continued  to  appear 
on  orders  taken  in  parliament  to  which  the  commons  had 
not  agreed.^  The  clergy,  too,  continued  to  legislate  in 
convocation,  and  in  1444  "a  certain  act  was  made  in 
parliament  by  the  king  with  the  advice  and  assent  of  the 
lords  spiritual  and  temporal "  without  any  reference  to 
the  commons.*  There  was  no  monopoly  for  the  commons 
yet,  but  on  the  other  hand,  they  had  their  independence 
of  other  estates,  and  no  consent  save  that  of  the  king  was 
needed  to  give  effect  to  their  petitions  and  their  grants. 
The  Modus  declares  that  king  and  commons  are  sufficient 
for  a  parliament,  and  in  1480  the  judges  held  that  a  grant 
by  the  commons  was  vahd  without  the  consent  of  the 
lords.5  Nor,  when  we  first  get  records  of  the  various 
readings  of  bills  and  petitions  by  the  lords,  do  we  find 
that  the  communes  petitiones  are  subject  to  that  process 

*  Rot.  Pari,  iv.  393. 

■  Cf.  Ibid.,  V.  8  et  passim. 

!  I^S  specific  reference  by  parliament  of  business,  with  which  it  had 
not  had  time  to  deal,  to  the  determination  of  the  council  (e.  g.  Rot.  Pari., 
>v.  334,  506)  justified  the  application  of  the  phrase  to  such  measures 
taken  when  parliament  was  not  sitting.  A  similar  use  or  abuse  of  the 
authority  of  convocation  in  connection  with  the  Forty-Two  Articles  has 
Deen  much  criticized  without  reference  to  precedents  (cf.  Gairdner. 
Lollardy  and  the  Reformation,  iii.  374-9). 

6  ^^^  -^^^^''J'  ^^L^^-  ^^^^-^  ^^'  49,  for  a  sunilar  instance. 
iii  loSn  Maynard,  21  Edward  IV,  p.  48;   Hallam,  Middle  Ages, 


THE  COMMONS  IN  PARLIAMENT  329 

of  examination;  only  the  royal  assent  is  expressed,  and 
that  is  apparently  enough. ^ 

There  are  thus  at  least  half  a  dozen  different  kinds  of 
parliamentary  legislation  in  the  middle  ages,  and  con- 
fusion results  from  treating  them  all  as  one  and  attempting 
to  compress  their  history  into  a  single  line  of  development. 
There  was  legislation  by  the  crown  in  parliament  (i)  on 
its  own  motion;  (ii)  on  petition  of  the  council;  (iii)  on 
petition  of  the  clergy ;  (iv)  on  petition  by  the  commons ; 
and  the  fourth  category  itself  falls  into  three  divisions  : 
(a)  communes  petitiones  ;  (b)  petitions  of  individuals  adopted 
ex  parte  by  the  commons,  and  (c)  financial  grants.  But 
side  by  side  with  the  amalgamation  of  estates  there  went  a 
simplification  of  legislative  practice.  The  crown  ceased 
in  time  to  legislate  in  parliament  on  its  own  motion,  pre- 
ferring the  forms  of  popular  action ;  the  petitions  of  the 
council  became  either  government  biHs  or  bills  introduced 
by  the  house  of  lords;  and  clerical  petitions  disappeared 
into  convocation.  There  were  left  the  commons'  bills, 
of  which  the  communes  petitiones  became  public,  and  the 
ex  parte  petitiones  private,  acts,  while  the  grants  of  money 
were  given  a  special  legislative  form. 

Singularly  enough  it  is  in  connexion  with  the  private 
ex  parte  petitions  that  we  get  the  earhest  evidence  of  the 
now  familiar  practice  of  three  readings.  The  form  of  acts 
into  which  the  communes  petitiones  were  cast  apparently 
discouraged  their  amendment  in  the  parliament  chamber, 
and  there  is  nothing  about  three  readings  of  them  in  the 
'*  Rolls  " ;  in  the  absence  of  Commons'  Journals  we  know 
nothing  of  the  practice  in  that  house,  where  the  custom  may 
well  have  been  originated.  We  know  little  more  of  the  rules 
adopted  by  the  house  in  debating  finance,  though  Hall's 
amusing  story  of  the  grants  in  1523  shows  that  the  "  com- 
mons "  and  knights  of  the  shire  retained  separate  action 
with  regard  to  their  respective  tenths  and  fifteenths,  goods 
and  lands. 2    These  grants  emerged  from  the  house  during 

^  These  communes  petitiones  are  kept  separate  from  other  petitions  on 
the  Rolls  until  Henry  VII's  reign.  2  Chronicle,  ed.  1809,  p.  657. 


330  THE  EVOLUTION  OF  PARLIAMENT 

the  fifteenth  century  in  the  form  of  an  indenture  which 
was  not  always  observed ;  and  in  1426  the  crown  and  the 
lords,  after  mature  consideration  of  the  judges  in  parlia- 
ment, determined  to  ignore  the  conditions  imposed  by 
the  commons  on  the  grant  of  a  subsidy  in  the  previous 
parliament.^ 

As  a  rule,  however,  supply  was  accepted  as  it  came  from 
the  house  of  commons,  and  details  of  procedure  in  the  lords' 
house  are  first  recorded  in  connexion  with  its  more  appro- 
priate judicial  business  arising  upon  petitions  presented 
by  individuals  with  or  without  the  endorsement  of  the 
commons.  From  the  beginning  of  Henry  V's  reign,  if  not 
earher,  the  clerk  notes  of  such  bills  or  petitions  that  they 
have  been  lectcB,  auditce,  et  intelledcB  coram  domino  nostro 
rege  ac  dominis  spiritualihus  et  temporalibus  in  prcedido 
parliamento  existentibus.^  In  1492  we  first  hear  of  their 
having  been  read  more  than  once,  scBpe,  scBpius,  or  perscepe, 
and  in  1495  we  Hght  upon  readings  ter  and  trina  vice.^ 
Three  readings  took  some  time  to  become  the  stereotyped 
procedure;  in  1516  we  have  reference  to  a  seventh  and 
an  eighth  reading  in  the  Lords'  Journals,  while  the  dwind- 
hng  "  Rolls  "  of  Henry  VHI's  reign  drop  their  mention  of 
three  readings  and  revert  to  the  less  specific  record  of  a 
century  before.*  More  important  is  the  fact  that  these 
various  readings  spread  to  bills  of  all  sorts,  except  such  as 
were  of  grace  and,  being  recommended  by  the  crown,  needed 
only  one.  The  contagion  of  uniformity  developed;  and 
the  commons,  who  in  earlier  days  had  been  content  with  a 
single  reading,  a  mere  verbal  acceptance,  or  even  a  tacit 
acquiescence,  began  to  give  three  readings  to  bills  which 
both  the  crown  and  the  lords  now  condescended  to  submit 
for  their  approval.  The  process  of  assimilation  reduced 
to  a  single  rule  of  three  readings  in  either  house  the  various 
methods  of  medieval  parliamentary  legislation;  but  the 
crown  retained  its  right  of  legislating  out  of  parhament  by 

I  ^ot.  Pari.,  iv.  275-6,  301 ;  cf.  above,  p.  288.     2  jbid.,  iv.  18  et  passim. 
Ibid.,  vi.  451-2,  460,  492-3,  512  :    denuo  recitatis  et  intellectis  occurs 
in  1485  {ibid.,  vi.  275). 
*  Lords'  Journals,  i.  55-6. 


THE   COMMONS  IN  PARLIAMENT  331 

proclamations  and  orders  in  council,  and  the  church  her 
right  of  legislating  in  convocation,  without  the  crown's 
participation  until  1532,  and  with  it  afterwards. 

The  control  of  the  house  of  commons,  however,  over 
parliamentary  petitions  steadily  increased,  and  in  Henry 
VI Fs  reign  an  act  was  repealed  on  the  petition  of  the 
commons  on  the  ground  that  it  had  been  passed  at  the  suit 
of  a  private  person  in  the  absence  of  the  members  for  Lanca- 
shire, to  which  it  referred.^  The  direct  access  accorded  to 
chancery  and  the  council  had  not  debarred,  though  it  had 
diverted,  petitioners  from  the  commons ;  and,  while  poorer 
htigants  went  as  a  rule  to  other  courts,  powerful  suitors 
resorted  more  and  more  to  parliament.  The  commons,  by 
adopting  private  petitions  and  presenting  them  as  their  own 
ex  parte  the  petitioner,^  succeeded  by  steps  which  have  not 
been  traced  in  establishing  the  presumption  that  the  crown 
could  not  legislate  on  private  petitions  in  parliament  without 
the  commons'  consent.  The  principle  was  recognized  by 
Henry  VH  when  he  sought  an  act  of  parliament  authorizing 
him  to  annul  certain  attainders  in  1504,  and  this  precedent 
was  followed  in  the  early  years  of  Henry  VHI ;  but  it  was 
not  fully  established  until  the  Stuart  claims  to  a  dispensing 
power  were  repudiated  at  the  Revolution.  The  authority  of 
the  commons  over  private  petitions  had  been  recognized, 
and  perhaps  enhanced  by  a  practice,  which  begins  early  in 
the  fifteenth  century  and  develops  rapidly  during  its  course, 
of  petitioners  addressing  their  petitions  to  the  commons 
instead  of  to  parliament,  the  crown,  council,  or  chancery ;  ^ 
for  when  petitions  were  addressed  to  the  commons  they 
clearly  had  the  option  of  endorsing  them  or  not. 

The  rapid  development  of  the  prestige  of  the  house  of 

1  Rot.  Pari.,  vi.  456-7. 

2  There  are  innumerable  instances  of  this  practice  in  Henry  VII's  reign. 
'  Even  peers   addressed  petitions  to  the   commons;   cf.    the   earl   of 

Wiltshire's  petition  in  1472  "  to  the  full  wise  and  discreet  commons  of 
this  present  parliament"  {Rot.  Pari.,  vi.  62).  There  is  abundant  evidence 
from  the  sixteenth  century  to  justify  Prof.  Mcllwain's  doubts  about  the 
permanence  of  the  commons'  renunciation  in  Henry  IV's  reign  of  any 
share  in  judicial  power  {High  Court  of  Parliament,  p.  203) .  In  the  Commons^ 
Journals,  i.  45,  there  is  a  record  of  the  hearing  of  evidence,  presence  of 
the  accused,  and  confession  of  the  criminal  in  a  murder  case. 


332  THE  EVOLUTION  OF  PARLIAMENT 

commons  during  the  sixteenth  century  led  to  the  abandon- 
ment by  the  crown  of  the  coercive  measures  it  had  not  very 
successfully  employed  to  secure  attendance,  though  as  late 
as  Mary's  reign  members  who  had  gone  home  without  leave 
were  prosecuted  in  the  queen's  bench. ^  Early  in  Henry 
VIII's  reign  the  clerk  of  the  lower  house  had  been  enjoined 
by  statute  to  keep  a  register  of  the  names  and  attendance  of 
members  of  the  house ;  ^  and  from  this  register  may  have 
come  the  idea  of  instituting  journals.  But  if  it  was  kept, 
all  trace  of  it  has  disappeared,  and  the  Journals  of  the 
commons,  unlike  those  of  the  house  of  lords,  have  never 
included  lists  of  the  names  of  those  present.  In  EHzabeth's 
reign  the  house  took  control  of  its  own  attendance,  and 
frequent  resolutions  were  passed  for  calling  of  the  roll  by 
the  clerk;  but  apparently  no  penalties  were  inflicted  for 
absence,  and  it  was  left  to  the  constituencies,  and  afterwards 
to  the  party  organization,  to  control  the  attendance  of 
members.  But  while  the  scanty  presence  of  members  in 
medieval  parliaments  and  the  measures  adopted  to  ensure 
attendance  indicate  that  the  wages  paid  had  become  an 
inadequate  consideration,  the  abeyance  of  those  measures, 
and  the  full  attendance  after  1529,  show  that  the  political 
importance  of  the  house  had  become  a  sufficient  incentive. 
Assuredly  during  the  Tudor  period  the  average  presence 
in  the  house  was  at  least  double  what  it  had  been  in  the 
fourteenth  and  fifteenth  centuries. 

Possibly  this  increase  suggested  its  removal  from  the 
chapter  house  to  St.  Stephen's  chapel,  an  important  step 
in  the  consolidation  of  parliament.  We  are  so  accustomed 
to  associate  parHament  with  magnificent  buildings  at  West- 
minster, and  to  think  of  houses  built  of  brick  or  stone,  that 
it  requires  a  mental  effort  to  reahze  that  the  house  of 
commons,  Hke  the  house  of  Lancaster  or  the  house  of 
York,  was  made  of  men,  and  might  be  anywhere.  Parlia- 
ment sat  in  various  towns  during  the  middle  ages,  and  its 
paraphernalia  was  easily  mobilized.     A  few  woolsacks  and 

>  Coke,  Institutes,  iv.  17;  Strype,  Reel.  Mem.,  III.  i.  262-4. 
«  7  Henry  VIII,  c.  i6.  ^ 


THE   COMMONS  IN  PARLIAMENT  333 

wooden  benches,  a  cloth  of  estate  and  a  chair  for  the  king, 
and  a  wagon-load  or  so  of  papers,  were  all  that  was  required ; 
and  even  the  exchequer  was  moved  about  from  London 
to  York  and  elsewhere.  But  as  records  grew  in  bulk  and 
the  machinery  of  government  increased  in  complexity,  the 
mobility  of  parliament  diminished,  and  it  tended  to  settle 
at  Westminster  and  there  to  create  a  habitation  of  its  own. 
The  king,  of  course,  summoned  it  to  his  hall  and  housed  it 
in  his  palace,  but  in  time  parliament  almost  expelled  the 
king  from  his  court,  and  few  people  think,  as  they  gaze  at 
the  houses  of  parliament,  they  are  contemplating  the  palace 
of  a  king. 

The  commons,  however,  had  only  enjoyed  the  king's 
hospitality  when  they  appeared  on  his  business  in  pleno 
parliamento.  Their  private  confabulations  were  their  own 
concern,  and  they  found  a  room  outside  the  palace  in  the 
refectory  and  then  in  the  chapter  house  of  the  abbey.  ^  There 
they  continued,  apparently,^  to  meet  till  the  reign  of 
Edward  VI,  when  they  came  across  to  St.  Stephen's  chapel, 
within  the  precincts  of  the  palace.  It  is  singular  that  this 
change  should  have  passed  almost  unnoticed  by  contem- 
poraries, and  should  have  excited  no  comment  from  anti- 
quaries like  Stow  and  Camden.  St.  Stephen's  had  been  a 
collegiate  church,  whose  canons  gave  their  name  to  Canon 
Row,  sometimes  called  St.  Stephen's  Alley.  It  fell  to  the 
king  by  the  second  chantries  act  of  1547,  ^^^  on 
22  July,  1550,  it  was  granted  to  Sir  Ralph  Vane,  with  the 
exception  of  the  upper  part  above  the  vault  of  the  chapel 
which  had  been  assigned  pro  domo  parliamenti  et  pro 
parliamentis  nostris  ibidem  tenendis.^  On  his  attainder 
it  was  on  29  April,  1552,  given  in  fee  simple  to  Sir 
John  Gates,  the  vice-chamberlain,  who   in  his   turn  was 

1  Rot.  Pari.,  ii.  237. 

2  There  were  exceptions;  In  1523.  for  Instance,  parliament  met  at 
Blackfriars,  whither  it  was  also  summoned  on  3  November,  1529,  but 
adjourned  on  the  4th  to  Westminster;  and  Mary  thought  of  holding 
parliament  at  Oxford  in  1554. 

5  Patent  Roll  834  m.  22,  846  m.  28  (per  Mr.  R.  H.  Brodieand  Miss  Winifred 
Jay) ;  Literary  Remains  of  Edward  VI  (Roxburghe  Club),  p.  431.  The  usual 
story  that  Henry  VIII  made  this  grant  is  inconsistent  with  the  references 
to  St.  Stephen's  in  the  last  volume  of  the  Letters  and  Papers. 


334  THE  EVOLUTION  OF  PARLIAMENT 

executed  on  22  August,  1553,  for  his  share  in  Northum- 
berland's conspiracy.  Stow  remarks  ^  that  the  chapel  was 
thenceforward  used  as  ''  a  parliament  house " ;  but  even 
so,  it  does  not  appear  to  have  afforded  accommodation  for 
committees,  which  generally  met  at  the  inns  of  court.^ 

Ostensibly  the  reunion  of  the  two  houses  under  one  roof 
was  a  sign  of  concentration;  but  the  commons  came  back 
on  very  different  terms  from  those  on  which  they  had 
originally  departed  from  the  open  parliament  chamber  to 
seek  seclusion  in  the  cloisters  of  the  abbey  for  their 
domestic  discussions,  and  the  difference  did  not  tend  to 
the  unity  of  parliament.  They  had  gone  forth  in  the  middle 
ages  merely  as  a  group  anxious  for  private  debate,  but 
carrying  with  them  little  of  the  glamour  and  authority 
of  the  high  court  of  parliament  which  they  left  behind 
them  in  the  seat  of  power.  They  came  back  as  one  of  two 
houses,  claiming  an  equal  share  in  the  dual  control  of  parlia- 
ment. Henceforth,  whatever  the  commons  said  or  did 
was  said  and  done  in  parliament;  one  roof  covered  both 
commons  and  lords,  and  one  constitutional  halo  surrounded 
their    actions.     The    commons  returned  to  parliament  to 

*  Stow's  Survey,  ed.  Kingsford,  ii.  377-9.  The  reference  {Acts  of 
Privy  Council,  1550-2,  p.  172)  to  an  account,  dated  2  Dec,  1549,  for 
"  works  about  the  parHament  house "  may  concern  the  alterations  to 
St.  Stephen's  chapel;  for  "the  parliament  house  "was  coming  to  be  used 
instead  of  "  the  parliament  chamber,"  and  to  include  both  houses  of  parlia- 
ment (cf.  ibid.  1547-50,  p.  248,  1552-4,  p.  20;  Exeter  Records,  Hist.  MSS. 
Comm.  1 91 6,  p.  51).  Foxe,  in  his  recension  of  his  authorities,  frequently 
changes  parliament  chamber  into  parliament  house.  "  Domus  "  is  often 
used  of  the  parliament  chamber  in  the  Lords'  Journals  for  Henry  VIII 's 
reign,  and  less  frequently  "  domus  superior  "  for  it,  and  "  domus  inferior  " 
for  the  commons  (Lords'  Journals,  i.  5,  7,  15,  21,  45),  In  1536  Cromwell 
writes  of  the  "nether  and  upper  houses"  (Merriman,  Cromwell,  ii.  47). 
In  1515  [Lords'  Journals,  i.  46)  it  is  suggested  that  indentures  for  knights 
of  the  shire  be  brought  "into  the  parliament  house"  as  usual;  and  in 
later  days  each  house  claimed  that  this  meant  its  own.  In  the  grant  to 
Vane  the  house  of  lords  is  called  "the  lords'  parliament  house,"  and  the 
house  of  commons  the  domus  parliamenti. 

2  Apparently  there  was  one  "  committee-chamber  of  the  house " 
(D'Ewes,  p.  253),  but  the  following  are  some  of  the  places  in  which 
committees  met  during  Ehzabeth's  reign  :  the  Star  Chamber,  Treasury 
Chamber,  Exchequer  Chamber,  Inner  Temple  Hall,  Temple  Church, 
Parlour  of  the  Middle  Temple,  New  Hall  in  the  Temple,  Lincoln's  Inn 
Hall,  Serjeants'  Inn,  Savoy,  Guildhall,  Rolls  Chapel,  Marshalsea,  and 
Court  House  at  Southwark  (D'Ewes,  pp.  221,  249,  250,  253,  298-9,  300, 
363). 

/ 


THE   COMMONS  IN   PARLIAMENT  335 

dispute  its  control  with  the  lords,  and  eventually  to  oust 
them  from  authority.  Some,  as  Sir  Robert  Cecil  remarked 
in  1601,  would  convert  all  sovereignty  into  popularity; 
and  popularity  made  less  allowance  for  the  peers  than  it 
did  for  the  crown. 

Cecil's  phrase  is  a  significant  omen  for  the  constitutional 
history  of  the  century,  in  the  opening  year  of  which  it  was 
uttered.  It  is  also  a  useful  reminder  of  the  strides  which  the 
commons  had  made  in  the  sixteenth  century.  But  for  that 
preparation  under  the  Tudors  there  could  have  been  no 
successful  struggles  under  the  Stuarts.  No  parliament  in 
the  middle  ages  had  been  able  to  wage  a  civil  war  or  depose 
a  king;  its  function  had  merely  been  to  confirm  the  work 
of  rival  factions  and  provide  titles  for  successful  usurpers, 
to  recognize  the  fait  accompli,  but  not  to  accomphsh  it.^ 
There  had  been  baronial  cliques,  but  never  a  parliamentary 
party,  because  parliament  had  possessed  nO  esprit  de  corps 
and  no  self -consistency ;  it  was  a  mere  conference  in  which 
things  were  done  by  kings  or  by  baronial  factions.  Under 
the  Tudors  it  became  an  entity  and  an  authority,  active  and 
independent,  claiming  to  speak  for  a  nation  in  tones  to 
which  kings  must  give  ear.  The  petitions  of  grace  had 
ended,  and  petitions  of  right  assumed  a  political  guise. 

The  commons  had,  they  told  James  I  in  his  first  parlia- 
mentary session,  yielded  much  to  Elizabeth  on  account  of 
her  age  and  sex;  ^  yet  they  had  spoken  in  terms  of  insistence 
about  her  marriage,  the  succession,  the  execution  of  Norfolk 
and  Mary  Stuart  which  no  medieval  parliament  would  have 
adopted.  It  is  an  obvious  criticism  of  the  commons  under 
Edward  III  and  the  Lancastrians  that  they  objected  to  the 
measures  of  the  crown,  but  had  no  policy  themselves.  They 
did  not,  indeed,  think  policy  was  their  business,  and  they 

1  Little  importance  can  be  attached  to  parliamentary  statutes  entailing 
the  crown  upon  successful  claimants  like  Edward  IV  and  Henry  VII ; 
for  parliament  had  no  option  in  the  matter.  Unless  the  king  de  facto 
was  also  king  de  jure,  his  writs  were  null  and  void,  and  the  assembly 
summoned  thereby  was  no  parliament  and  could  make  no  statutes. 
Henry  IV  had  taken  the  precaution  of  compelling  Richard  II  to  issue  the 
writs  for  the  parliament  which  accepted  his  abdication. 

2  Gardiner,  Hist,  of  England,  i.  182. 


336  THE  EVOLUTION  OF  PARLIAMENT 

invariably  pleaded  incapacity  when  asked  for  advice  on 
matters  of  state.  But  their  tone  was  different  under  Elizabeth  ; 
they  had  ideas  of  religious  policy,  of  economic  policy,  and 
of  foreign  poHcy  which  they  had  not  derived  from  authority 
and  wanted  to  force  on  the  crown.  Even  under  Henry  VIII 
the  commons  could  be  stubborn  enough  when  they  liked; 
attacks  on  the  government  were  often  made  by  individual 
members,  and  the  house  as  a  whole  refused  in  1534  to  make 
spoken  words  treason,  and  rejected  or  amended  various  bills 
promoted  by  the  government.^  The  parliament  of  1545  has 
generally  been  taken  as  the  highwater-mark  of  Henry's 
autocratic  power;  and  eminent  historians  have  depicted  in 
sombre  hues  the  servility  of  the  commons. ^  A  letter  from 
Secretary  Petre,  written  on  the  last  day  of  the  session,^ 
puts  its  history  in  a  truer  and  very  different  light :  "  the 
book  [i.  e.  bill]  of  the  colleges,"  he  writes,  "  escaped  narrowly, 
and  was  driven  over  to  the  last  hour,  and  yet  then  passed 
only  by  division  of  the  house.  .  .  .  The  bill  of  books,  albeit 
it  was  at  the  beginning  earnestly  set  forward,  is  finally 
dashed  in  the  common  house,  as  are  divers  others."  More- 
over, several  of  those  which  passed  both  houses  were  so 
distasteful  to  the  king  that  he  vetoed  them ;  and  the  picture 
of  the  king  "  having  his  own  way  in  everything "  is 
imaginary.  Parhaments  and  people  cannot  change  their 
character  in  a  moment;  and  if  Tudor  parliaments  had 
been  servile,  Stuart  parliaments  would  not  have  achieved 
their  independence. 

The  Stuarts,  however,  expected  greater  subservience 
from  their  parhaments  than  the  Tudors  had  looked  for ;  and 
their  doctrinaire  royalism  hastened  a  struggle  which  could 
only  have  been  avoided  by  submission  on  the  part  of  king 

1  Letters  and  Papers,  vii.  51 ;  Lords'  Journals,  i.  71,  73,  80,  89;  Pollard, 
Henry  VIII,  pp.  288-93.  ./»/:>..    y. 

..  *  Cf.  Stubbs,  Lectures  on  Medieval  and  Modern  History,  1887,  pp.  288-9  : 
Clearly  the  independent  spirit  has  nearly  evaporated.  The  ecclesiastical 
bills  pass  without  a  protest.  ...  The  Journals  [there  are  none  for  the 
commons^  record  no  opposition  or  protest ;  the  king  has  his  own  way  in 
eveiything  "  ;  and  the  Political  History,  v.  470,  speaks  of  the  king  "  securing 
by  his  repeated  presence  at  the  debates  a  tranquil  passage  for  both 
measures  (the  subsidy  act  and  the  chantries  or  colleges  act) . 
»  Letters  and  Papers,  XX.  ii.  1030-1 


THE   COMMONS  IN  PARLIAMENT  337 

or  parliament.  The  commons  had  developed  a  will  of  their 
own,  and  the  only  question  was  how  far  that  will  should 
encroach.  They  were  firm  in  their  protestantism  and  in 
their  determination  to  control  supplies ;  their  protestantism 
provoked  an  ambition  to  dictate  a  protestant  domestic  and 
foreign  policy,  and  their  determination  to  control  supplies 
led  them  to  attack  the  instruments  by  which  the  crown 
sought  to  enforce  non-parliamentary  taxation.  They  were 
thus  brought  into  collision  with  the  whole  administration  of 
the  crown,  and  civil  war  could  alone  decide  whether  king 
or  parliament  should  dispose  of  the  national  forces.  The 
commons  appeared  to  triumph  over  the  lords  as  well  as 
over  the  crown  in  1649;  but  the  permanent  lesson  of  the 
struggle  was  that  civil  war  leads  to  military  dictation,  and 
the  common  subjection  of  crown  and  parliament  to  the 
army  produced  a  national  resolution  to  avoid  the  cure  of 
militarism  for  the  future.  James  II's  attempt  to  support 
his  government  by  military  force  deprived  him  of  any  party 
willing  to  fight ;  and  without  force  at  its  command  the  crown 
was  at  the  mercy  of  parliament. 

The  Revolution  of  1688  did  not,  however,  establish  respon- 
sible government  in  England  in  the  sense  we  attach  to  the 
phrase.  For  in  that  sense  responsible  government  involves 
two  things  :  firstly,  the  responsibility  of  the  executive  to 
the  legislature,  and  secondly,  the  responsibility  of  the  legis- 
lature to  the  people.  The  second  is  the  more  important  of 
the  two,  for  the  American  constitution  has  shown  that  it  is 
possible  to  secure  popular  self-government  without  making 
the  executive  responsible  to  the  legislature.  But  no  popular 
self-government  is  possible  unless  the  legislature  is  responsible 
to  the  community;  and  it  was  in  this  respect  that  the 
Revolution  was  defective.  The  mere  existence  of  the  house 
of  lords,  and  its  claim  to  co-ordinate  powers  with  the  elected 
house  of  commons,  hampered  the  operation  of  this  respon- 
sibility. But  more  important  than  the  irresponsibility  of 
the  house  of  lords  in  the  eighteenth  century  was  the  irre- 
sponsibilit^^  of  the  house  of  commons.  The  commons  had 
in  the  seventeenth  century  claimed  as  autocratic  a  power 
z 


338  THE  EVOLUTION  OF  PARLIAMENT 

as  the  Stuarts.  They  asserted  for  their  resolutions  the  force 
of  law ;  1  and  by  their  own  authority  they  had  in  1649 
abolished  two  out  of  the  three  branches  of  the  legislature. 
They  prolonged  their  own  existence,  and  excluded  their 
opponents,  not  merely  from  the  house  of  commons,  but  from 
the  rank  of  electors.  It  was  their  "  horrid  "  arbitrariness, 
as  Cromwell  called  it,  which  opened  the  way  for  the  more 
horrid  arbitrariness  of  military  despotism. 

The  exclusive  spirit  was  still  strong  in  both  houses  of 
parliament  during  the  eighteenth  century.  The  reporting 
of  debates  and  the  publication  of  division  lists  were  denounced 
as  giving  colour  to  the  idea  that  members  were  responsible 
to  some  authority  outside  the  walls  of  parliament.  Expres- 
sions of  opinion  unfavourable  to  the  house  of  commons, 
such  as  the  Kentish  petition,  were  voted  scandalous,  and  the 
house  attempted  to  punish  the  petitioners  as  though  they 
had  committed  a  crime.  It  claimed  by  resolution  to  dis- 
franchise electors;  it  decided  disputed  elections  by  party 
votes  in  the  house;  and  even  went  so  far  as  to  unseat 
members  who  had  been  duly  elected  and  co-opt  candidates 
who  had  been  duly  defeated.^  Its  criterion  was  its  own 
privilege,  and  it  had  little  respect  for  any  one  else's  liberty. 

The  Revolution  had  transferred  power  from  the  crown  to 
parliament,  but  not  from  parliament  to  the  people.  The 
merest  fraction  possessed  votes,^  and  the  voters  themselves 

^  Prothero,  Select  Documents,  1898,  p.  290;  Gardiner,  Documents,  1889, 
pp.  26-7.  In  the  former,  the  "  Apology  "  of  1604,  the  commons  assert  that 
the  power  of  parliament  is  "  above  the  law,"  and  in  the  latter  document 
Charles  I  complains  that  some  of  them  "  have  not  doubted  to  maintain 
that    the    resolutions  of    that  house  must  bind  the  judges,"  and  that 

their  drift  was  to  .  .  .  erect  an  universal  overswaying  power  to 
themselves."  ^     o    x- 

2  On  April  13,  1769,  the  house  declared  Colonel  Luttrell,  who  had 
been  twice  defeated  by  John  Wilkes,  to  have  been  duly  elected,  and 
falsified  the  return  accordingly. 

'  An  important  but  less  familiar  struggle  was  waged  in  some  con- 
stituencies over  the  franchise.  Thus,  at  Reading,  on  October  22,  1705, 
the  corporation  resolved  that  "  for  the  time  to  come  the  mayor,  aldermen, 
and  burgesses  m  their  common  counsell,  in  case  of  members  to  serve  in 
parliament  for  this  borough,  doe  first  determine  and  resolve  amongst 
themselves  whoe  shall  be  deemed  fitt  representatives  for  that  purpose  " ; 
but  on  March  4,  176 1,  it  issued  a  declaration  that  it  never  intended  to 
deprive  the  inhabitants  paying  scot  and  lot  of  their  votes  at  parliamentary 
elections  {Hist.  MSS.  Comm.,  nth  Rep.,  vii.  204,  206). 


THE   COMMONS  IN  PARLIAMENT  339 

little  power.  Elections  simply  meant  a  choice  of  masters, 
and  not  a  decision  of  policy.  Only  twice  in  the  eighteenth 
century  was  a  general  election  held  to  settle  a  public  question, 
once  in  1701  when  William  III  appealed  to  the  country - 
against  a  Tory  house  of  commons,  and  secondly  in  1784, 
when  the  younger  Pitt  appealed  to  it  against  Whig  domina- 
tion. For  the  rest  ministers  were  changed,  policies  adopted 
and  discarded,  war  declared  and  peace  made,  without  the 
least  reference  to  the  electors.  Each  election  was  a  local 
and  personal  contest,  and  not  a  political  conflict  of  principles. 
A  member  did  what  he  liked  in  parliament,  subject  to  the 
whim  of  the  owner  of  the  borough  for  which  he  sat,  and  the 
same  territorial  magnates  decided  the  contests  in  the  shires. 
The  commons  in  parliament  enjoyed  the  fruits  of  a  victory 
they  had  won  as  representatives  of  the  people,  but  they  did 
not  wish  to  share  them. 

George  III  interrupted  this  comfortable  state  of  affairs, 
and  turned  against  parliamentary  magnates  their  own 
political  arts.  Their  lack  of  public  support  facilitated 
George's  operations.  He  could  never  have  bribed  and  cajoled 
a  really  representative  house  of  commons,  but  an  almost 
self-constituted  body  of  landlords  and  their  clients  could  be 
met  with  the  weapons  they  used,  and  it  was  the  success  of 
the  *'  king's  friends  "  which  opened  the  eyes  of  the  Whigs 
to  the  need  for  reform.  Unless  corruption  were  checked, 
George  might  recover  by  influence  what  the  Stuarts  had 
failed  to  retain  by  force.  On  the  other  hand,  if  corruption 
were  checked  and  parliament  reformed,  there  would  be  an 
end  to  the  Whig  system  of  government.  Distracted  between 
fear  of  corruption  by  the  crown  and  of  reform  by  popular 
pressure,  the  old  Whigs  and  Tories  were  saved  for  a  time  by 
the  French  Revolution,  which  made  reform  a  nightmare; 
and  for  another  generation  the  breach  between  the  commons 
in,  and  the  commons  out  of,  parliament  grew  wider. 
Political  reform  might  be  stayed  by  the  French  Revolution, 
but  industrial  changes  were  not,  and  the  old  representative 
system  became  inconsistent  with  every  principle  of  represen- 
tation. 


340  THE  EVOLUTION  OF  PARLIAMENT 

The  reform  act  of  1832  was,  however,  essentially  a  bour- 
geois achievement ;  it  enfranchised  the  middle  classes,  but 
not  the  poor,  a  number  of  whom  actually  lost  the  votes  they 
possessed  before.  Not  until  1867  were  the  town  artisans, 
nor  until  1885  were  the  agricultural  labourers  really  repre- 
sented by  the  commons  in  parliament.  Meanwhile  religious 
and  other  disabilities  were  removed,  and  it  became  possible 
for  all  sorts  and  conditions  of  men,  Roman  Catholics,  Non- 
conformists, Quakers,  Jews,  Mohammedans,  Free-thinkers, 
to  sit  and  vote  in  parliament.  Within  two  generations  of 
the  reform  act  the  house  of  commons  was  converted  from 
a  poHtical  club,  with  its  membership  limited  practically  to 
one  class,  into  a  microcosm  of  the  nation.  It  comprehended, 
not  merely  one  or  two  estates  of  the  realm,  but  all ;  and  it 
monopolized  all  their  powers.  It  extended  its  sway,  because 
it  abandoned  its  privilege,  and  accepted  the  position  of  agent 
to  the  community.  It  ceased  to  claim  independence,  and  so 
it  won  legal  omnipotence.  Once  or  twice  in  the  later  middle 
ages  a  clerk  with  a  prophetic  soul  described  the  commons* 
house  as  the  communitas  communitatum  ;  the  communities 
have  become  a  community,  the  estates  have  become  the 
state ;  and  when  we  speak  of  the  state  we  mean  the  state 
in  parliament. 


CHAPTER  XVII 

THE    STATE   IN    PARLIAMENT 

The  State  is  a  word  which  does  not  appear  in  the  Enghsh 
language  until  the  close  of  the  middle  ages,  because  the  idea 
it  seeks  to  express  had  not  before  dawned  on  the  English 
mind.  It  cannot  be  translated  into  ancient  Greek,  because 
the  Greeks  could  not  divorce  the  idea  of  the  state  from 
the  particular  form  in  which  it  was  made  manifest  to  them ; 
and  so  they  had  but  one  word,  noUg,  for  both  city  and  state. 
The  Latin  respublica  and  civitas  come  nearer  to  our  meaning, 
because  the  wider  experience  of  the  Romans  made  them 
familiar  with  a  greater  variety  of  states;  but  the  Romans 
hesitated  to  apply  either  civitas  or  respublica  to  Persia  or 
even  to  their  own  impemim,  while  both  Persia  and  the 
Roman  empire  are,  to  our  minds,  as  much  states  as  the 
cities  of  Athens  or  of  Rome.  It  is  the  modern  diversity 
of  political  organization  that  makes  both  necessary  and 
possible  some  generic  word  to  express  the  idea  without 
denoting  any  particular  manifestation.  Nevertheless,  every 
member  of  a  state  does  habitually  associate  with  it  in  his 
mind  some  peculiar  characteristic.  The  German  used  to 
conceive  of  might  as  the  essence  of  the  state,  with  a  soldier 
as  its  embodiment  and  a  Hohenzollern  at  its  head.  To  a 
Russian  the  state  was  largely  the  tsar,  to  a  Frenchman 
V administration,  and  to  an  American  himself.^  To  an 
Englishman  its  embodiment  is  parliament. 

This  English  conception  rests  on  a  sound  historical  basis. 

1  A  British  judge  once  addressed  an  American  in  court  as  "  one  of  the 
subjects  of  the  United  States,"  to  which  the  American  objected  that  he 
was  one  of  the  sovereigns  of  the  United  States.  But  the  point  of  view  is 
changing,  and  some  Americans  would  say  that  the  States  are  the  state. 

341 


342  THE  EVOLUTION  OF  PARLIAMENT 

The  state  is  a  fusion  of  estates,  and  the  fusion  was  brought 
to  pass  in  parHament.  The  indefinite  number  of  estates 
which  gathered  at  Westminster  in  the  fourteenth  century 
gradually  merged  into  three,  which  in  the  sixteenth  century 
were  authoritatively  defined  as  crown,  lords,  and  com- 
mons ;  ^  and  the  three  estates  of  the  realm  were  melted 
into  the  national  state  by  the  fervour  of  sixteenth-century 
nationalism.  Under  Henry  VIII  its  complexion  was  royal, 
in  the  eighteenth  century  aristocratic,  and  to-day  it  is 
popular.  But  the  unity  wrought  in  parliament  has  never 
been  seriously  disturbed  since  the  Civil  War  and  the  Revo- 
lution; and  within  England  itself,  whatever  we  may  say 
of  Scotland,  Ireland,  or  realms  beyond  the  sea,  there  has 
been  no  greater  danger  of  two  states  than  its  division, 
of  which  Disraeli  spoke,  into  a  nation  of  the  rich  and  a 
nation  of  the  poor. 

Out  of  this  fusion  grew  the  supremacy  of  parliament. 
When  in  the  twelfth  and  thirteenth  century  the  founda- 
tions of  an  Enghsh  constitution  began  to  emerge,  only 
an  estate  could  tax  itself.  Thanks  to  Edward  I  it  could 
only  tax  itself  in  parliament,  and  the  conference  in  which 
the  taxing  was  done  gradually  became  the  authority  for 
the  act.  By  a  somewhat  subtle  and  protracted  process, 
estates  which  had  taxed  themselves  in  parliament  assumed, 
under  the  garb  of  parliament,  the  power  to  tax,  and  to 
bind  in  various  ways,  other  estates  as  well;  and  both  the 
Anglican  clergy  and  the  nobility  have  lost  their  medieval 
right  to  tax  themselves,  and  are  taxed  by  the  house  of 
commons,  from  which  they  are  both  by  law  excluded. 
The  merging  of  the  individual  in  his  "  estate  "  involved  the 
surrender  to  that  estate  of  his  individual  hberty;  the 
merging  of  the  "  estates  "  in  the  state  involved  the  surrender 
to  the  state  of  their  medieval  autonomy.  In  England  it  was 
a  slow  and  gradual  process  of  parliamentary  evolution  : 
and  as   late  as  the  reign  of  James    I  parhament  itself 

»  Burghley,  at  a  joint  committee  of  lords  and  commons  in  February 
1585  (D'Ewes,  p.  350).  Cowell,  however,  in  1607,  gives  the  modern 
version  (Prothero,  p.  410). 


THE  STATE  IN    PARLIAMENT  343 

Speaks  of  "  the  state  ecclesiastical  "  as  well  as  of  *'  the 
whole  state  of  the  realm,"  while  the  king  talks  of  "the 
state  of  monarchy."  ^  In  France  the  fusion  took  the  form 
of  sudden  combustion  known  as  the  French  Revolution,  the 
critical  stage  in  which  was  the  agreement  of  the  three 
estates  to  sit  and  vote  together  as  a  national  assembly, 
submitting  to  a  majority.  The  state  in  parliament  has  thus 
become  an  embodiment  of  Hobbes's  Leviathan,  and  Austin 
expressed  its  essence  in  juridical  language  when  he  defined 
law  as  the  command  of  the  state. 

The  sovereignty  of  parliament  is,  however,  only  a  legal 
sovereignty;  behind  it  lies  the  political  sovereignty  of  the 
electorate  and  the  general  will  of  the  people,  which  parlia- 
ment is  supposed  to  reflect  with  more  or  less  fidelity.  But 
the  **  people  "  is  so  indeterminate  an  expression  that  its 
use,  let  alone  its  abuse,  obscures  almost  all  political  dis- 
cussion. Who  are  "  the  people,"  and  to  what  extent  do 
they  really  govern?  Abraham  Lincoln's  famous  rhetoric 
at  Gettysburg  to  the  effect  "  that  government  of  the  people 
by  the  people  for  the  people  shall  not  perish  from  the 
earth,"  has  achieved  a  world-wide  vogue,  because  it  expresses 
a  common  aspiration  without  attempting  to  define  it.  His 
words  did  not  state  the  problem  with  which  he  had  to  deal, 
nor  suggest  a  solution.  Every  southerner  against  whom  he 
fought  could  subscribe  to  his  principle,  and  its  enunciation 
no  more  defined  the  issue  than  it  provided  a  basis  of  recon- 
ciliation. The  south  believed  that  under  this  specious 
phrase  Lincoln  was  asserting  a  claim  to  the  government 
of  the  people  of  the  south  by  the  people  of  the  north 
for  purposes  of  which  the  north  alone  approved;  and 
the  remark,  which  an  American  writer  directs  against 
the  British  empire,  that  "  a  democracy  pretending  to 
sovereignty  over  other  democracies  is  either  a  phantom  or 
the  most  intolerable  of  oppressions,"  is  not  without  rele- 
vance to  the  conquest  of  the  southern  by  the  northern 
States.  So  far  as  the  south  was  concerned,  Lincoln's 
recipe  was  that  of  Oliver  Cromwell — "  what's  for  their 
1  Prothero,  Docummts,  ed.  1898,  pp.  288,  291,  293. 


344  THE  EVOLUTION  OF  PARLIAMENT 

good,  not  what  pleases  them— that's  the  question";  and 
at  Gettysburg  he  was  a  unionist  rather  than  a  democratic 
statesman. 

His  real  meaning  was  that  government  of  the  people  as 
a  whole,  by  the  people  as  a  whole,  for  the  people,  as  a  whole 
should  not  perish  from  the  earth;  and  his  essential  prin- 
ciple was  the  right  of  majorities  to  coerce  minorities. 
Probably  Edward  I  meant  much  the  same  thing  with  his 
maxim  quod  omnes  tangit  ah  omnibus  approbetur  ;  and  the 
purport  of  the  principle  in  application  was  to  exclude 
such  claims  of  those  of  Peter  des  Roches,  who  asserted 
immunity  from  taxation  to  which  he  had  not  consented. 
The  issue  of  north  against  south  was  to  determine  what 
was  the  whole,  and  what  was  a  part.  The  south  stood  to 
the  north  in  1861  in  a  stronger  numerical  relation  than 
the  thirteen  colonies  did  to  the  mother  country  in  1776; 
by  what  right  could  those  who  claimed  for  the  part  its 
independence  of  the  whole  in  1776  deny  the  right  of  a 
larger  part  to  assert  its  independence  of  the  whole  in  1861  ? 
And  if  the  part  is  bound  to  and  by  the  whole,  by  what  right 
did  sections  of  the  cathoHc  church  separate  from  the 
whole  and  reform  themselves  in  the  sixteenth  century? 
The  right  to  secede  has  been  the  political  and  religious 
making  of  the  American  people,  and  an  indispensable 
weapon  of  human  progress.  We  can  get  no  nearer  to  a 
principle  on  Abraham  Lincoln's  lines  than  to  say  that  a 
group  of  men  may,  if  it  can,  make  and  call  itself  a  nation, 
and  may  then  deny  to  other  groups  the  rights  they  them- 
selves claimed  to  exercise.  Ireland  illustrates  better  than 
any  hypothetical  case  the  crucial  ambiguities  which  Abraham 
Lincoln's  wisdom  concealed.  Government  of  the  people  by 
the  people  for  the  people  is  not  in  dispute,  and  all  the  parties 
take  their  stand  upon  unity,  unionists  on  the  unity  of  the 
United  Kingdom,  nationalists  on  the  unity  of  Ireland,  and 
Ulstermen  on  the  indivisibility  of  Ulster.  The  fact  that 
men  hold  a  common  principle  does  not  prevent  them  from 
waging  war  to  define  its  apphcation.  One  faith  in  parlia- 
mentary government  will  not  save  us  from   diversity  of 


THE   STATE  IN   PARLIAMENT  345 

parliaments ;  and  so  fully  has  the  state  been  merged  in 
parliament  that  diversity  of  parliaments  has  sometimes 
meant  disruption  of  an  empire. 

Nor  is  the  problem  a  mere  numerical  difficulty,  for  the 
claim  that  the  whole  is  greater  than  the  part  is  nothing  but 
a  mathematical  dogma  without  significance  for  human 
or  practical  affairs.  To  the  thirteen  colonies  in  1776,  as 
to  the  southern  states  in  1861,  the  part  was  greater  than 
the  whole;  and  to  many  an  individual  his  single  soul  is 
more  than  all  the  world.  It  is  the  essence  of  all  religion 
that  man's  relation  to  God  and  conscience  makes  his  rela- 
tion to  the  state  conditional  and  not  absolute;  and  the 
absolutism  of  the  state  is  a  form  of  pagan  idolatry.  It 
is  only  within  limits  and  upon  conditions  that  the  whole 
can  dictate  to  the  part,  even  to  so  small  a  part  as  the 
individual  citizen.  To  determine  those  limits  and  to  define 
those  conditions  is  the  function  of  human  progress  in 
politics.  To  ignore  them  or  to  deny  their  existence,  and 
upon  that  denial  to  build  a  parliament  or  a  state,  is  to  build 
it  upon  the  sands.  Man  is  a  great  deal  more  than  a  political 
animal ;  and  the  best  parts  of  the  best  men  are  those  with 
which  parHament  has  nothing  to  do.  PoHtics  are  a  second- 
best  business  of  second-best  men,  and  we  do  not  rank  our 
politicians  with  our  poets  and  philosophers.  Whatever  a  man 
may  render  to  Csesar,  he  may  not  surrender  his  soul.  Govern- 
ment of  the  people  by  the  people  only  implies  control  of 
an  indeterminate  part  of  human  affairs  by  indeterminate 
parts  of  the  human  race. 

Nor,  indeed,  is  government  by  the  people  anything  more 
than  a  rhetorical  phrase;  and  it  is  somewhat  ironical  that 
the  most  progressive  of  Lincoln's  admirers  have  found  in 
government  by  commission  the  highest  interpretation  of 
government  by  the  people  in  municipal  affairs,  and  in 
national  affairs  a  popular  dictatorship.  Government  by 
the  people  is  government  by  those  whom  the  people  send 
to  Westminster  or  Whitehall,  in  either  a  direct,  or  a  round- 
about way,  for  reasons  that  may  have  nothing  to  do  with 
administration.     Questions  of  war  and  peace,    of  foreign 


346  THE  EVOLUTION  OF  PARLIAMENT 

policy,  of  public  health,  of  education  are  not  determined 
by  popular  election ;  and  the  nearer  a  public  body  approaches 
to  direct  popular  sovereignty,  the  more  circumscribed  its 
powers  will  be.  A  parish  council  is  the  authority  which 
embodies  most  fully  Rousseau's  ideal,  and  its  powers  are 
narrowly  limited  by  act  of  parliament  and  carefully 
controlled  by  a  non-elective  local  government  board. 
Extended  powers  are  only  entrusted  to  bodies  elevated  high 
above  the  average  elector.  Even  in  casting  a  vote  for 
those  to  whom  his  rulers  will  be  responsible,  the  voter  does 
not  consciously  express  an  opinion  on  more  than  one  or  two 
issues ;  and  the  opinion  has  to  take  the  form  of  a  blunt  yes 
or  no,  when  the  solution  will  probably  be  a  compromise  for 
which  no  one  would  have  spontaneously  voted  at  all. 

Government  is,  in  fact,  a  technical  matter  with  which 
only  experts  are  fitted  to  deal.  In  the  rudest  of  primitive 
societies  every  individual  did  a  more  or  less  equal  amount 
of  everything,  including  what  government  there  was;  and 
some  small  communities,  like  ancient  Athens,  clung  to  the 
idea  that  office  should  go  by  rotation  and  be  determined 
by  lot.  But  long  before  national  states  were  evolved, 
functions  were  highly  specialized.  Individuals  gave  up 
attempting  to  do  everything  equally  in  order  that  they 
might  do  some  things  better.  Instead  of  all  fighting  pell- 
mell  by  the  light  of  nature,  some  were  made  soldiers  with 
nothing  to  do  except  to  make  themselves  expert.  Instead 
of  all  keeping  watch  and  ward  in  turn  and  pursuing  the 
hue  and  cry,  a  standing  police  force  was  created  to  keep 
the  community's  peace.  Instead  of  all  meeting  in  popular 
councils,  some  were  chosen  to  manage  the  politics  of  the 
people.  From  being  jacks-of -all-trades  men  have  sought  to 
be  masters  of  one;  for  the  rest  they  rely  upon  representa- 
tion, and  the  community  only  performs  its  functions  by 
vicarious  skill.  Democracy,  if  it  involves  a  reversion  to 
the  original  type  of  society,  in  which  every  man  took  an 
equal  share  in  politics,  is  a  hopeless  form  of  reaction. 

But  it  is  only  the  crudest  of  doctrinaires  who  think  that 
people  can  govern  themselves  in  the  sense  of  administering 


THE  STATE  IN  PARLIAMENT  347 

their  own  complicated  affairs.  No  employer  can  do  all 
the  work  of  the  men  he  employs;  and  the  best  that  the 
public  can  do  is  to  judge  of  the  work  that  is  done  in  its 
service  without  attempting  to  do  the  work  of  its  servants. 
It  is  not  a  bad  judge  of  the  effects  of  legislation  and  govern- 
ment, because  it  is  the  public  which  feels  them;  and,  as 
Washington  said,  people  must  feel  before  they  can  see. 
They  are  not,  however,  good  judges  of  legislative  proposals, 
because  to  foresee  effects  requires  a  natural  imagination 
combined  with  expert  political  intelligence.  For  this 
reason  both  initiative  and  referendum  are  doubtful  ex- 
pedients. Aristotle's  remark  that  the  best  judge  of  a 
dinner  is  not  the  cook,  but  the  diner,  is  valid  in  politics ;  but 
the  diner  is  not,  therefore,  a  competent  cook.  The  public 
is  a  bad  legislator,  but  a  competent  judge  of  legislation.  A 
wise  public  will,  therefore,  not  attempt  to  legislate  itself, 
but  will  insist  on  the  responsibility  of  its  legislators,  and 
dismiss  them  if  they  fail.  Parliament  is  the  skilled  legis- 
lative agent  of  the  electorate,  and  there  is  no  reason  for  its 
existence  unless  it  is  more  expert  in  politics  than  its 
employers. 

The  case  for  democracy  does  not,  indeed,  rest  on  the 
wisdom  of  the  electorate;  and  no  one  can  have  any  doubt 
that  every  extension  of  the  franchise  has  lowered  the  average 
intelligence  of  the  voter.  It  is  not,  however,  the  brains 
of  the  voter,  but  his  interests  that  justify  his  claim  to  a 
vote.  Every  class  governs  in  its  own  interests  when  it  has 
the  chance  and  is  irresponsible;  and  the  only  tolerable 
foundation  for  the  state  in  parliament  is  one  on  which  all 
estates  can  stand.  It  was  Hobbes's  plea  for  monarchy 
that  the  monarch  was  superior  to  all  class  interests ;  and  it 
is  conceivable  that  an  all-powerful  bureaucracy  might 
adjust  the  interests  of  the  various  classes  with  less  friction 
and  a  finer  discrimination  than  is  possible  as  a  result  of  the 
rough-and-tumble  of  British  politics.  The  chief  argument 
for  parliamentary  government  is  that  results  are  obtained 
by  discussion  between  the  divergent  interests,  and  are 
imposed  by  consent — a  method  which  produces  a  better 


348  THE  EVOLUTION  OF  PARLIAMENT 

average  of  humanity  than  the  most  scientific  of  despotisms. 
But  it  is  for  parhament  to  frame  those  compromises,  which 
we  call  laws,  between  clashing  interests.  Not  even  the 
most  rabid  democracy  has  proposed  to  graduate  an  income- 
tax  by  popular  referendum;  and  an  actual  incident  in 
municipal  politics  illustrates  its  humours  and  its  dangers. 
Six  improvements  were  once  submitted  to  the  burgesses  of 
a  particular  town  for  approval;  all  were  carried  by  large 
majorities.  A  seventh  proposal  was  to  raise  a  twopenny 
rate  to  pay  the  expense;  it  was  rejected  by  a  majority 
about  as  large  as  that  which  voted  the  improvements. 
It  is  obvious  that  the  government  which  carries  reforms 
should  be  responsible  for  raising  the  revenue ;  there  is  no 
sounder  rule  in  the  house  of  commons  than  that  which 
prevents  any  one  who  is  not  a  responsible  minister  from 
proposing  additional  expenditure,  and  there  is  nothing 
more  vicious  in  the  United  States  congress  than  the 
practices  which  arise  from  neglect  of  this  precaution. 
There  would  be  little  endowment  of  higher  education  in 
England  if  it  depended  on  the  votes  of  those  who  do  not 
aspire  to  profit  by  it,  and  little  promotion  of  scientific  or 
other  research  if  it  were  referred  to  the  masses  who  cannot 
judge  of  its  value. 

The  validity  of  popular  judgement  is  limited  to  problems 
which  the  pubhc  feels,  and  the  bearings  of  which  it  can 
grasp.  Practically  it  is  only  upon  such  questions  that  the 
mass  of  voters  have  any  desire  to  cast  a  vote.  A  proposal 
to  close  public-houses  will  in  England  excite  more  popular 
interest  than  any  question  of  foreign  policy;  and  the 
technical  arguments  about  free  trade  and  tariff  reform 
have  to  be  reduced  in  the  forum  to  the  vulgar  shape  of  the 
little  loaf,  two  jobs  for  one,  or  taxing  the  foreigner  for 
England's  benefit.  The  reason  for  submitting  such  ques- 
tions to  popular  judgement  is  that  the  people  feel  the 
pinch,  and  to  feel  the  pinch  without  the  means  of  relieving 
the  pressure  creates  a  sense  of  social  injustice  and  friction, 
which,  in  its  turn,  hampers  the  efficiency  and  impairs  the 
peace  and  energy  of  the  community  to  a  greater  extent 


THE  STATE  IN  PARLIAMENT  349 

than  the  lack  of  trained  intelHgence  Whether  wage- 
earners  should  be  paid  in  kind,  and  what  is  a  dangerous 
trade  or  a  living  wage,  are  questions  better  left  to  the  political 
sense  of  the  community  than  to  the  highest  skill  of  supreme 
courts  of  justice.  A  court  of  law  is  not  the  place  to  deter- 
mine questions  of  politics,  and  the  fact  that  the  high  court 
of  parliament  has  become  more  political  an^  less  judicial, 
while  retaining  the  sole  control  of  legislation,  is  one  of  the 
reasons  why  in  England  we  have  no  election  of  judges  and 
no  proposals  for  their  "  recall  "  by  popular  vote. 

There  is,  however,  nothing  final  in  politics.  The  best 
constitution  is  that  which  adapts  itself  best  to  the  actual 
state  of  society.  The  increase  of  popular  education  auto- 
matically widens  the  legitimate  sphere  of  popular  judge- 
ment; and  when  the  mass  of  the  voters  comprehend  the 
conditions  of  foreign  policy  there  is  no  reason  why  they 
should  not  claim  its  control.  It  is  a  matter  which  rests 
with  themselves,  and  the  control  will  only  come  when 
electors  feel  keenly  enough  about  foreign  policy  to  sub- 
ordinate to  it  the  petty  considerations  of  personality,  local 
interest,  and  party  feeling,  by  which  most  votes  are  deter- 
mined at  present.  But  under  no  conceivable  circumstances 
will  the  mass  of  electors  become  so  expert  in  the  increas- 
ingly complex  problems  of  politics  as  to  render  superfluous 
the  advice  and  guidance  of  specially  trained  intelligence. 
Government  by  the  people  can,  under  existing  circumstances, 
mean  no  more  than  government  by  agencies  which  are 
responsible  to  the  people  and  regard  their  authority  as  a 
trust  to  be  exercised  for  the  people  as  a  whole,  and  not  in 
the  interest  of  themselves  or  of  the  class  to  which  they 
belong. 

Man  is,  however,  a  complex  creature,  with  many  needs 
and  feelings  for  which  he  requires  expression;  and  it  does 
not  follow  that  any  single  agency  is  the  best  medium  for 
all  the  requisite  forms  of  expression.  For  half  a  century 
or  more  there  has  been  a  tendency  to  make  the  state  in 
parliament  the  universal  and  omnicompetent  exponent  of 
all  that  men  think  or  feel.     Yet  there  are  all-important 


350  THE  EVOLUTION  OF  PARLIAMENT 

exceptions.  The  German  might  make  the  state  his  rehgion 
and  the  kaiser  his  gre^t  high-priest ;  but  the  Enghshman 
has,  for  the  most  part,  rejected  parHament  as  the  proper 
exponent  of  his  rehgion,  and  free  church  principles  appeal 
to  a  wider  circle  than  that  of  the  free  churches.  A  sym- 
pathetic echo  is  repeated  from  opposite  quarters,  and  the 
syndicalist  is  one  who  wants  to  apply  free  church  principles 
to  his  bread-and-butter.  He  thinks  that  each  group  of 
workers  should  determine  the  wage  and  the  hours  for 
which  it  should  work,  and  the  price  at  which  it  should  sell 
the  product  of  its  labour.  A  preliminary  condition  would 
be  the  ehmination  of  the  capitahst,  and  the  control  by  the 
group  of  the  capital  as  well  as  of  tha  labour  it  required ;  but 
a  more  serious  difficulty  consists  in  the  extent  of  the  bargain- 
ing involved  with  other  groups.  Before  one  group  could 
produce  anything  at  all,  agreements  would  be  necessary 
with  countless  other  groups  engaged  in  making  the  instru- 
ments needed  by  the  first,  and  the  regulation  of  these 
relations  by  endless  independent  sovereignties,  instead  of 
by  parliament,  would  seem  to  involve  an  amount  of  friction 
not  far  removed  from  anarchy. 

Indeed,  the  movement  has  the  appearance  of  a  reversion 
to  the  medieval  system  of  liberties  from  which  England  was 
redeemed  by  the  growth  of  parliament.  It  is  a  reaction  to 
vocational,  and  not  to  local  particularism,  but  it  is  none  the 
less  an  effect  of  restricted  consciousness  and  retarded  political 
education;  and  it  is  based  on  a  determination  to  exalt  the 
group  at  the  expense  of  the  community.  It  arises  from 
impatience  with  the  slowness  of  communal  action  compared 
with  the  rapidity  of  the  results  secured  by  strikes  and  other 
forms  of  action  by  which  the  group,  in  moments  of  parlia- 
mentary weakness,  can  blackmail  the  community.  It  is  also 
an  imitation  of  the  unprincipled  methods  by  which  superior 
groups  of  landlords  and  merchants  have  *' cornered"  commo- 
dities and  taken  advantage  of  national  needs  to  fleece  the 
nation  for  individual  gain.  Miners  are  as  much  entitled  as 
mine-owners  to  extort  what  profit  they  can  from  monopoly, 
and  the  producer  who  demands  higher  wages  is  on  the  same 


THE   STATE  IN   PARLIAMENT  351 

moral  plane  as  the  trader  who  raises  his  prices.  The 
monopoly  is  the  source  of  the  evil ;  like  every  other  liberty 
it  cannot  remain  uncontrolled  by  parliament.  It  was  once 
said  by  a  statesman  of  moderate  views  that  the  state  must 
control  the  trade  in  drink  or  the  trade  in  drink  would  control 
the  state.  There  is  a  corresponding  antithesis  between  the 
state  and  every  other  form  of  interest;  and  the  problem 
again  is  one  which  Abraham  Lincoln's  democratic  maxim 
gives  us  no  help  in  solving.  Both  syndicalism  and  socialism 
are  government  by  the  people;  the  question  is,  whether 
that  government  is  to  be  by  the  people  in  guilds  or  by 
the  people  in  parliament. 

The  fundamental  difference  between  syndicalism  and 
socialism  is  that  one  is,  and  the  other  is  not,  fatal  to  parlia- 
ment. Syndicalism  is  disruptive,  anarchic,  and  illogical.  It 
aims  at  providing  a  sort  of  government,  not  merely  by  isolat- 
ing one  group  from  another,  but  by  isolating  one  aspect  of 
life — ^the  economic — from  all  the  rest,  and  making  the  cash- 
nexus  the  bond  of  human  society.  In  the  middle  ages  the 
guild  or  group  concerned  itself  with  almost  all  aspects  of 
human  activity,  not  merely  with  the  livelihood  of  its  members, 
but  with  their  education,  their  religion,  and  their  amusements. 
Each  guild  was  a  little  state  and  church  within  itself,  with 
its  patron  saint,  its  ritual,  its  technical  education,  its  rules, 
which  regulated  the  minutest  affairs  of  each  member  from 
the  cradle  to  the  grave.  The  system  had  its  advantages, 
but  it  was  incompatible  both  with  individual  liberty  and  with 
national  organization ;  it  was  a  less  expanded  form  of  selfish- 
ness than  patriotism.  Presumably  its  modern  imitators  do 
not  propose  to  make  education,  religion,  domestic  and 
foreign  policy  subject  to  group  control,  and  therefore 
dependent  on  group  support.  But  a  group  which  depends 
on  the  community  as  a  whole  to  supply  most  of  its  needs 
can  hardly  expect  independence  in  the  sphere  of  its 
choice.  Even  economic  independence  is  a  chimera;  it  is 
impossible  to  segregate  groups  of  men  in  a  community, 
and  still  more  so  to  isolate  the  different  instincts  of  man- 
kind, and  base  on  one  of  them  a  social  or  political  system. 
\ 


352  THE  EVOLUTION  OF  PARLIAMENT 

The  isolation  of  the  "  economic  "  man  is  as  fatal  to  syndic- 
alists and  to  Mr.  Norman  Angell  as  it  was  to  the  classical 
economists.  There  are  things  for  which  men  will  fight, 
however  little  war  may  pay,  and  there  are  objects  for  which 
they  will  vote  in  defiance  of  all  their  economic  interests. 

These  imponderabilia  are  the  stuff  of  which  politics  are 
made,  and  sentiment  is  the  most  stubborn  of  facts  with 
which  the  statesman  has  to  deal.  It  may  be  that,  while 
the  economic  interpretation  of  history  supplies  the  key  to 
the  past,  the  key  to  the  future  is  in  the  ideahst's  hands. 
Man  is  not  precluded  from  aspiration  because  he  sprang 
from  something  like  primeval  slime,  and  the  state  is  not 
limited  to  material  interests  because  it  grew  out  of  material 
necessities.  We  are  not  obliged  to  fix  our  vision  on  the 
depths  from  which  we  have  risen,  and  the  future  may  lie 
in  aversion  from  the  past.  The  growth  of  the  state  in 
parliament  has  been  in  vain  if  it  is  still  to  be  bound  to  the 
conditions  from  which  it  has  won  emancipation.  The 
essence  of  its  success  has  been  its  constant  adaptation  to 
circumstances,  and  a  fresh  orientation  of  the  state  in 
response  to  moral  development  is  not  less  feasible  to-day 
than  it  was  yesterday  and  the  day  before.  It  is  a  childish 
mind  which  only  sees  in  history  its  superficial  repetitions. 

The  state  has,  it  is  true,  been  made  by  the  selfishness  of 
men;  and  it  consists  of  the  burdens  and  obligations  which 
they  have  transferred  from  their  shoulders.  Nowadays  we 
are  impressed  by  the  magnitude  of  the  responsibilities  the 
masses  have  thrust  upon  the  state  since  they  gained 
control  of  parliament — free  education,  free  food  for  school 
children,  free  treatment  in  hospitals,  public  parks  and 
museums,  and  a  host  of  other  amenities  open  to  those  who 
do  not  pay,  as  well  as  to  those  who  do.  But  the  process  is 
not  new,  nor  are  the  masses  those  who  began  or  have 
profited  most  by  the  transference.  When  Wilham  the  Con- 
queror disposed  of  the  land,  he  merely  leased  it  on  terms  of 
service  at  his  court  and  in  his  army ;  and  the  whole  burden 
of  national  defence  lay  on  the  holders  of  land.  By  degrees 
these  holders  were  enabled  in  parliament  to  fix  and  Hmit 


i 


THE  STATE  IN  PARLIAMENT  353 

this  obligation,  then  to  reduce  it,  and  finally  to  escape  it 
altogether.  Each  step  in  their  emancipation  involved  an 
increased  burden  on  the  state,  until  the  whole  was  transferred 
from  the  land  to  the  people.  What  landlords  did  in  the 
middle  ages  merchants  achieved  by  their  parliamentary 
influence  in  modern  times.  When  new  worlds  were  dis- 
covered and  the  seas  made  highways  of  traffic,  the  merchant 
adventured  at  his  own  risk  and  expense.  It  was  his  enter- 
prise and  his  concern,  and  no  one  else  assumed  any  liabilities 
if  his  vessel  were  robbed  by  pirates  or  wrecked  on  uncharted 
shores.  But  gradually  the  merchants,  as  they  acquired 
political  power,  transferred  this  burden  to  the  state,  and 
it  became  a  matter  of  national  obligation  and  expense 
to  survey  the  oceans,  build  lighthouses,  deal  with  pirates, 
and  render  the  high  seas  as  safe  from  human  violence  as 
the  king's  highways  on  land.  Merchant  ships  need  no 
longer  go  armed  in  time  of  peace,  nor  sail  in  convoys; 
and  taxes  voted  in  parliament  diminished  the  risks  and 
increased  the  traders'  profits.  It  was  these  two  processes 
which  created  the  English  army  and  navy,  and  provided 
the  state  with  its  fighting  forces. 

Other  activities  of  the  state  have  developed  in  similar 
ways  by  parliamentary  agency.  Instead  of  a  system  of 
blood-feuds  by  which  each  family  redressed  its  own  wrongs, 
or  of  trial  by  battle,  we  have  a  national  system  of  justice. 
Instead  of  each  man  being  sworn  to  arms  for  the 
preservation  of  the  peace,  we  have  a  national  police  force. 
English  trade-interests  abroad,  which  were  once  supervised 
by  the  agents  of  individual  guilds  and  companies,  are 
now  in  the  hands  of  a  national  consular  service;  and 
the  foreign  office  controls  diplomatic  relations  which 
were,  in  the  middle  ages,  largely  relations  between  one 
corporation  and  another,  and  not  between  national 
states.  One  of  the  difficulties  in  the  early  days  of 
diplomacy  was  the  little  control  which  each  state  exercised 
over  its  subjects,  and  fifteenth-  and  sixteenth -century 
treaties  have  elaborately  to  lay  it  down  that  they  are 
binding  on  subjects  of  every  degree.     Colonies  and  planta- 

AA 


354  THE  EVOLUTION  OF  PARLIAMENT 

tions,  which  were  originally  founded  at  the  expense  of 
chartered  companies,  and  ruled  by  them,  have  been  taken 
over  by  the  state,  and  the  colonial  office  is  the  result.  In 
fact,  every  department  of  government  represents  some  obli- 
gation or  burden  which  has  been  transferred  by  parliament 
from  individuals  to  the  state.  The  state  consists  of  burdens 
of  which  individuals  have  been  relieved;  and  every  subject 
considers  he  has  a  right  to  innumerable  national  services. 
Socialism  is  not  a  sudden  growth  of  latter  days;  it  is  the 
product  of  the  parliamentary  development  of  the  state. 

The  English  state  has  thus  been  created  out  of  the 
material  needs  of  individuals  working  by  means  of  parlia- 
ment; it  does  not  follow  that  it  exists  merely  for  their 
satisfaction.  There  is  clearly  a  limit  to  the  process  by 
which  every  individual  seeks  to  get  all  he  can  out  of  the 
state;  and  the  costliness  of  modern  socialism  is  due  to  the 
extension  of  the  numbers  entitled  to  vote  for  parliament. 
Occasionally  general  elections  have  resembled  public 
auctions,  at  which  votes  are  knocked  down  to  those  who 
promise  the  greatest  amount  of  parliamentary  assistance; 
and  signs  have  been  discovered  of  ultimate  national  bank- 
ruptcy, unless  the  rush  to  draw  more  and  more  out  of  the 
state  can  be  met  by  a  move  to  pay  more  and  more  in.  That 
is  the  basis  of  national  service.  The  state  has  consisted  of  the 
burdens  thrust  upon  it;  it  should  consist  of  the  sacrifices 
men  offer.  The  historical  process  must  be  inverted,  and 
the  rights  of  man  subordinated  to  his  duties  and  respon- 
sibilities. The  test  of  future  citizenship  will  be  what  a 
man  gives,  not  what  he  receives;  and  there  is  good 
authority  for  the  belief  that  to  give  is  the  better  condition. 
The  function  of  parliament  has  been  to  distribute  the 
burdens  imposed  on  the  state  by  the  shirking  of  individuals ; 
it  should  be  to  distribute  the  benefits  accumulated  through 
personal  service.  The  debt  should  become  an  endowment, 
the  duty  a  satisfaction. 

There  is,  however,  no  virtue  in  compulsion,  and  sacrifice 
ceases  to  have  any  value  when  it  ceases  to  be  free.  It 
becomes  an  imposture  by  imposition.     The  strength  of  a 


THE   STATE  IN  PARLIAMENT  355 

state  consists  in  the  extent  of  the  sacrifice  its  people  offer ;  its 
weakness  in  the  extent  of  the  sacrifice  it  extorts.  The  state, 
moreover,  consists  of  the  sacrifice  made;  it  is  not  a  deity 
to  which  the  sacrifice  is  offered.  That  is  idolatry.  The 
state,  like  parliament,  is  made  of  men  and  women ;  without 
them  it  is  nothing.  It  is  not,  therefore,  an  external  and 
mysterious  entity.  It  consists  of  one's  neighbours  and  oneself, 
and  most  of  our  differences  depend  upon  the  emphasis  we  put 
upon  the  egotistic  or  the  altruistic  aspect  of  the  state.  It 
is  an  expression  of  the  mind,  or  of  part  of  the  mind  of  its 
members ;  no  quality  in  which  they  are  deficient  can  charac- 
terize their  state,  and  their  predominant  attributes  will 
decide  its  nature.  When  Treitschke  said  the  state  is 
might,  he  was  merely  expressing  in  other  words  the  German's 
behef  in  the  duel;  and  when  he  repudiated  the  idea  that 
any  international  tribunal  could  bind  the  national  state,  he 
was  simply  applying  to  the  state  that  exemption  from  the 
rule  of  law  which  the  duel  secures  for  the  individual. 
Germany's  methods  of  making  war  merely  magnified  the 
characteristics  of  German  personal  relations.  The  state  is 
merely  man  raised  through  parliament  to  the  power  of  the 
state. 

It  is  doubtful  whether  the  word  has  not  outlived  its  use- 
fulness. It  means  too  many  different  things  to  different 
people  to  have  much  meaning  left  at  all ;  and  in  the  British 
Empire,  at  any  rate,  we  should  express  our  meaning  more 
precisely  by  speaking  of  the  community  than  of  the  state, 
for  confusion  is  inherent  in  the  use  of  the  same  term  for 
the  community  and  for  its  government.  The  German  had 
no  difiiculty  in  imagining  a  state  whose  will  and  interests 
were  independent  of  the  community,  because  he  felt  that 
he  needed  a  master.  British  peoples,  on  the  other  hand, 
believe  in  governing  themselves,  and  to  them  the  state 
means  nothing  apart  from  the  community;  it  is  simply 
the  organization  of  the  community  on  a  parliamentary 
bas'is.  But  it  is  idle  to  speak  of  the  claims  which  the 
community  has  on  the  community ;  and,  if  the  sovereignty 
of  parliament  is  identical  with  the  absolutism  of  the  state, 


356  THE  EVOLUTION   OF  PARLIAMENT 

it  is  a  meaningless  term  to  a  self-governing  people,  unless 
it  means  unlimited  duty  to  one's  neighbour.  There  are 
clearly  limits  to  that  duty,  and  therefore  to  the  claims  of 
the  community. 

These,  indeed,  are  recognized  in  practice.  Parliament 
does  not  impose  a  common  religious  service  or  political 
opinion ;  and,  though  it  does  impose  a  common  obligation, 
there  are  lengths  to  which  that  common  obligation  does 
not  go.  The  problem  is  to  define  the  limits  of  common 
obligation  in  terms  compatible  with  individual  liberty.  It 
is  something  to  have  made  the  obligation  common ;  it  was 
differential  in  the  days  of  privilege.  Being  common,  it 
tends  towards  equality;  for  if  the  basis  of  the  state  be 
obligation,  the  obligation  must  be  equal.  If,  on  the  other 
hand,  the  basis  of  the  state  is  oblation  rather  than 
obligation,  there  is  ample  scope  for  aristocracy.  No  one 
can  ever  be  compelled  to  give  his  best,  or  will  ever  give  it 
on  compulsion.  Compulsion  only  yields  a  common  mean ; 
and  the  community  is  ill-occupied  when  its  activities  are 
devoted  to  reducing  effort  to  a  common  level.  The  trades- 
union  descends  to  such  methods  only  because  its  members 
work  for  a  master ;  and  if  the  state  is  regarded  as  a  similar 
master  its  service  will  sink  to  a  similar  level.  There  is  no 
limitation  of  output  when  each  is  a  volunteer  in  a  cause  that 
is  his  own. 

The  value  of  the  state  in  parliament  is  that  thus  it 
becomes  common  property  administered  by  consent.  Its 
obligations,  like  its  taxes,  come  by  way  of  grant  and  not 
of  imposition.  The  grant  is  a  matter  of  compromise, 
average,  and  negotiation;  and  our  efforts  to  avoid  com- 
pulsion involve  a  vast  expenditure  of  energy.  We  maintain 
our  army  by  advertisement,  and  upon  appeals  to  voluntary 
aid  our  army  relies  for  its  nurses.  Upon  similar  appeals 
depend  our  hospitals,  our  system  of  higher  education,  our 
societies  for  the  prevention  of  cruelty,  and  hundreds  of 
other  organizations  performing  functions  which  might  be 
performed  with  greater  dignity,  efficiency,  and  economy  by 
the  state.    To  achieve  the  economy,  efficiency,  and  saving 


THE   STATE   IN   PARLIAMENT  357 

of  dignity  secured  by  the  performance  of  these  functions 
by  the  state  would,  however,  involve  a  conscription  of 
capital ;  and  whatever  may  happen  to  lives  or  labour  there 
must,  it  seems,  be  no  conscription  of  wealth.  That  the 
claim  to  men's  lives  should  be  thought  reasonable  and  the 
claim  to  their  capital  unjust  is  perhaps  the  most  striking 
illustration  of  the  extent  to  which  in  a  capitalistic  state 
capital  takes  precedence  of  human  life,  and  to  which,  even 
under  a  democratic  franchise  in  a  parliamentary  state, 
wealth  can  make  its  influence  prevail  over  numbers. 

But  it  is  only  in  a  parliamentary  state  that  these  rival 
claims  of  classes  and  of  interests  can  be  adjusted.  Syndi- 
caHsm  is  no  remedy,  and  direct  action  in  the  form  of  the 
initiative  and  referendum  is  little  better.  The  essential 
vice  of  syndicalism  is  that  it  is  a  form  of  dissociation 
rather  than  association,  and  minimizes,  if  it  does  not 
destroy,  the  responsibility  of  each  group  to  others.  Power 
must  always  be  a  matter  of  responsibility,  whether  it  is 
exercised  by  an  individual,  a  parliament,  or  a  trades- 
union.  It  is  a  trust,  and  the  idea  that  its  possessor  is 
responsible  to  and  for  no  one  but  himself  is  as  pernicious 
for  the  voter  as  for  the  monarch.  No  one  is  really 
entitled  to  a  vote  except  in  so  far  as  he  feels  in  using 
that  vote  that  he  is  exercising  a  trust  for  other  people. 
Representation  is  a  means  of  developing  responsibility,  and 
the  wider  the  interests  and  the  group  for  which  the  repre- 
sentative is  and  feels  responsible,  the  broader  and  the 
deeper  will  be  his  sense  of  responsibility.  Indirectly,  too, 
he  educates  his  constituents  in  a  similar  sense.  The  presence 
of  trades-union  leaders  in  parliament  forces  upon  them  a 
sense  of  national  obligation  in  addition  to  their  group- 
responsibility,  and  in  turn  the  trades-unions  which  have 
representatives  in  parliament  will  think  more  nationally 
than  those  which  have  none.  The  particularism  of  the 
American  colonies  before  the  war  of  independence  was  so 
pronounced  that  the  mother  country  had,  on  occasion, 
to  pay  them  to  defend  themselves,  and  they  were  quite 
incapable  of  concerting  a   common  colonial  policy.     The 


358  THE  EVOLUTION  OF  PARLIAMENT 

reason  was  that  they  had  no  representation  in  the  parha- 
ment  responsible  for  their  defence,  and  no  common 
parhament  of  their  own.  The  problem  exists  to-day  in 
a  modified  form,  and  it  underlies  the  national  and 
imperial  politics  of  the  British  realms;  the  narrower  the 
responsibility,  the  duller  the  political  capacity.  It  is  only 
by  contact  with  wider  issues  that  the  political  sense  of 
groups  and  individuals  is  quickened,  and  the  greater  the 
emphasis  on  the  particular  the  feebler  the  perception  of 
the  general.  La  petite  politique,  c'est  Vennemi  de  la  grande. 
Hence  the  need  of  an  imperial  parliament  to  broaden 
the  outlook  of  its  members,  and  by  their  means  to  com- 
municate that  wider  sense  to  their  constituents.  A  member 
of  parliament  serves  the  nation,  and  not  merely  his  con- 
stituency. His  constituents  do  not  merely  elect  a  local 
representative,  but  cast  a  vote  on  national  and  imperial 
politics.  Local  government  may  bring  politics  to  the 
cottager's  door;  a  parliamentary  vote  should  raise  the 
cottager  to  a  higher  level  of  political  vision.  Only  in 
that  vision  will  he  see  the  need  of  sacrifice  and  service, 
bridge  the  distance  which  separates  and  unites  his  interest 
and  the  common  weal,  and  learn  the  lesson  of  accommoda- 
tion. The  salt,  unplumbed,  estranging  sea  long  turned  the 
Englishman's  gaze  inwards  upon  his  self-sufficient  liberties ; 
and  a  parliament  which  satisfied  his  insular  aspirations  ful- 
filled his  conditions  of  constitutional  perfection.  Our  kin 
from  afar  may  train  our  eyes  to  scan  a  wider  horizon.  It 
remains  to  be  seen  whether  the  parliament,  through  which 
we  escaped  from  the  valley  of  parochial  politics  into  the 
sphere  of  national  action,  can  lead  to  even  more  extended 
views.  In  parliament  all  the  estates  of  the  realm  were 
absorbed  and  made  one  for  the  common  weal  of  England. 
Can  British  dominions  be  absorbed  and  made  one  for  their 
common  weal  in  a  parliament  which  shall  be  no  longer  a 
parliament  of  estates  but  a  parliament  of  the  British 
realms  ? 


CHAPTER  XVIII 

THE   BRITISH   REALMS   IN   PARLIAMENT  ^ 

The  design  of  the  foregoing  chapters  has  largely  been  to\ 
indicate  the  transitional  character  of  every  phase  of  parlia- 
mentary development  and  to  emphasize  the  elastic  nature 
of  parliament  itself.  That  elasticity  has  been  somewhat 
impaired  in  modern  times,  and  conservatives  loved  to  dwell 
on  the  impregnable  rocks  and  rigid  foundations  of  the  British 
constitution,  ignoring  the  fact  that  rigidity  is  the  death  of 
every  living  organism.  At  a  period  when  the  elasticity 
of  parliament  is  of  supreme  importance  to  the  future  of  the 
British  realms  and  of  parliamentary  institutions  themselves, 
it  is  well  to  remember  that  parliament,  which  seems  to  us 
so  definite  an  institution,  was  for  long  nothing  more  precise 
than  a  method  of  government  by  debate,  and  that  the 
sovereignty  of  parliament  is  merely  an  attempt  to  realize 
the  supremacy  of  reason.  It  is  well  also  to  remember  thafN 
when  an  institution  becomes  the  slave  of  its  own  forms 
and  loses  the  capacity  of  adaptation  and  expansion,  it 
courts  extinction.  The  formalism  of  Anglo-Saxon  juris- 
prudence involved  its  supersession  by  the  practice  of 
Henry  II's  judges ;  and  the  conservatism  of  the  common-law 
courts  at  the  close  of  the  middle  ages  nearly  led  to  their 
destruction  at  the  hands  of  Roman  lawyers,  prerogative 
courts,  and  Tudor  despots.  If  parliament  undergoes  a 
similar  process  of  petrifaction,  it  will  in  time  become  a  fossil. 

It  is  not  that  Anglo-Saxon  peoples  with  parliamentary 

1  This  chapter  was  written  in  August  1915;  a  sentence  or  two  relating 
to  the  German  and  Russian  constitutions  hare  been  changed  from  the 
present  to  the  past  tense. 

359 


36o  THE  EVOLUTION   OF  PARLIAMENT 

marrow  in  their  bones  are  likely  to  seek  refuge  in  non-parlia- 
mentary methods  of  government.  The  question  is,  whether 
the  high  court  of  parliament,  the  particular  institution  in 
which  those  methods  have  been  enshrined  and  developed 
for  national  purposes,  can  adapt  itself  to  wider  purposes, 
or  whether  new  needs  will  provoke  new  methods,  growing  into 
other  institutions.  The  imperial  conference  might  become 
an  imperial  parhament,  or  the  British  parliament  ^  might 
absorb  the  imperial  conference.  In  either  case  parliamentary 
institutions  would  be  preserved;  but  in  the  former,  the 
existing  imperial  parliament  would  sink  to  a  local  legislature, 
and  in  the  latter  it  would  have  to  undergo  a  far-reaching 
transformation.  There  are,  indeed,  signs  that  the  tra- 
/  ditional  English  method  of  settlement  by  discussion  is 
/  stronger  than  the  newer  omnicompetence  of  a  crystallized 
house  of  commons;  and,  to  the  discomfort  of  pseudo- 
constitutional  purists,  the  decisive  discussions  over  the 
Insurance  Act  in  1912  took  place  outside  the  house  and 
between  representatives  who  were  not  its  members.  In 
point  of  fact,  this  was  an  unconscious  reversion  to  medieval 
practice  by  which  the  estates  had  settled  details  of  finance 
and  their  attitude  towards  petitions  outside  parliament,  and 
had  merely  reported  the  result  by  the  mouth  of  their  Speaker 
to  the  high  court  for  acceptance  or  rejection.  The  precedent 
of  extra-parliamentary  debate  is  likely  to  be  followed  on  an 
ever-extending  scale;  and  there  seems  no  reason  why  it 
should  not,  provided  that  the  representatives  of  th6  com- 
munity, who  bargain  with  the  parties,  are  responsible  to 
parliament  and  that  parliament  retains  the  power  of 
I  ratification  or  rejection.  Legislation  is  growing  too  complex 
1  for  profitable  discussion  of  its  details  by  a  body  of  seven 
\  hundred  general  practitioners  of  politics;  and  it  is  better 
K  debated — in  its  details,  at  least — ^between  the  expert  bureau- 
crats who  inform  the  minister  and  will  have  to  apply  the 

1  The  term  imperial  pariiament,  as  applied  to  the  existing  British 
pariiament,  is  bound  to  become  more  and  more  an  anachronism.  From 
its  cognizance  are  already  in  practice  excluded  the  commercial  relations 
of  the  great  dominions;  and  the  more  British  foreign  policy  is  made  a 
matter  of  common  concern  to  British  dominions,  the  less  will  be  the 
control  exerted  over  it  by  a  pariiament  of  the  British  Isles. 


THE  BRITISH  REALMS  IN  PARLIAMENT         361 

legislation,  and  the  spokesmen  of  those  who  will  suffer  or 
profit  from  their  administration. 

Parliamentary  government  does  not  therefore  involve 
government  of  everything  by  one  parliamentary  method 
or  by  a  single  parliament.  The  exigencies  of  the  empire 
have  long  ago  disposed  of  that  sort  of  unity  and  uniformity ; 
and  the  problem  is  how  to  preserve  a  common  bond  between 
the  various  methods  and  institutions,  and  to  prevent  the 
specialization  of  functions  from  developing  independent 
species.  In  other  words,  is  the  British  empire  a  state  or  a 
collection  of  states?  The  question  was  once  asked  of  a 
British  student  who  had  spent  some  years  in  Canada 
whether  he  would  describe  the  British  empire  as  a  state, 
and  he  said  *'  Yes."  He  was  then  asked  whether  he 
would  have  given  the  same  answer  in  Canada,  and  he  said 
"  No."  Events  are  moving  rapidly,  but  that  dissonance 
remains  a  faithful  reflex  of  the  imperial  situation;  and 
with  it  remains  the  doubt  how  long  it  will  be  possible  in 
different  parts  of  the  empire  to  give  diametrically  opposite 
answers  to  the  same  question.  Our  immediate  concern  is 
to  consider  whether,  if  at  all,  parliament  will  be  the  means  of 
finding  a  solution. 

It  is  not  theoretically  essential  that  parliament  should  be 
the  bond  of  unity  in  an  empire.  It  was  not  the  reichstag 
which  gave  substance  to  the  unity  of  Germany,  nor  did 
Roman  unity  owe  aught  to  parliamentary  institutions. 
Religion  has  sometimes  formed  a  basis,  and  it  was,  perhaps 
unfortunately,  the  strongest  tie  between  all  the  Russias  of 
yesterday.  But  churches,  inasmuch  as  their  ultimate 
appeal  is  to  the  individual  soul,  tend  to  be  .fissiparous ;  and 
the  amalgamation  of  churches  has  been  of  the  rarest  and 
most  local  occurrence.  No  church  could  provide  a  founda- 
tion of  unity  for  the  British  realms.  The  crown  has  to  be 
presbyterian  in  Scotland  and  anglican  in  England;  and, 
had  not  the  impossibility  of  identifying  church  and  state 
been  recognized  in  time,  the  crown  might  also  have  been 
roman  catholic  in  Ireland  and  heaven  knows  what  in  other 
of  its   dominions.     So   long  as  unity  was  attempted  by 


362  THE  EVOLUTION   OF   PARLIAMENT 

religion,  the  effect  was  rather  to  distract  the  crown  than  to 
unite  the  churches.  Race  has  been  a  commoner  bond  than 
rehgion,  but  race  breaks  down  as  the  hnk  of  British  unity, 
and  raciahsm  is  rather  the  bane  than  the  basis  of  the  empire. 
Language  is  in  a  somewhat  better  case ;  but  the  events  of 
1776  proved  that  language  was  no  specific  against  disruption, 
and  there  are  millions  of  white  citizens  in  British  realms 
who  speak  no  English.  Customs,  again,  traditions  and 
history  are  as  diverse  as  they  could  be  in  the  British  empire ; 
indeed,  in  these  respects  there  is  no  more  unity  in  the  empire 
than  in  the  world.  Where  then  is  that  differential  basis 
to  be  found  on  which  to  build  a  British  state  of  such  diver- 
gent elements  ?  Race,  religion,  history,  and  language  stand 
for  so  much  in  men's  culture  that  they  leave  but  little  room 
for  the  other  foundations  of  community. 

It  is  clear  that  those  foundations  can  only  be  political, 
not  racial  or  religious.  The  greatest  political  failure  of 
any  people  in  the  world's  history  has  been  that  of  the  Jews, 
and  that  wonderful  race  failed  in  politics  because  of  its 
racial  purity  and  its  religious  concentration.  The  jealousy 
of  their  God  left  no  scope  for  the  state;  and  it  needed 
Christianity  to  find  room  for  Caesar  in  a  Jew's  allegiance. 
Ever  a  church,  but  never  a  state  since  the  dispersion,  the 
Jews  owed  their  failure  to  their  repulsion  of  gentile  elements. 
A  Jew  can  assimilate  almost  any  quality,  but  he  cannot  draw 
gentiles  into  his  fold.  So,  too,  the  German  can  transform 
himself  into  any  other  nationality,  but  he  cannot  make 
others  German  to  any  appreciable  extent,  and  within  the 
heart  of  Germany  there  are  alien  colonies  which  have 
resisted  for  generations  the  permeation  of  German  culture. 
For  this  reason  the  German  was  driven  to  force  as  his 
panacea;  the  lack  of  political  attractiveness  made  him  a 
repellent  militarist;  and,  however  brilliant  the  triumph 
of  military  genius  and  organization,  empires  won  by  the 
sword  have  a  habit  of  falling  on  their  own  weapon.  Mili- 
tarism, at  any  rate,  is  not  the  bond  which  binds  the  fabric 
of  the  British  realms.  They  are  only  held  together  by  con- 
sent, and  that  consent  is  based  upon  political  considerations. 


THE   BRITISH  REALMS  IN  PARLIAMENT         363 

some  of  them  merely  sentimental,  some  of  them  idealistic, 
and  others  severely  practical  in  character. 

It  is  only  in  the  political  sphere  that  the  essential  claims  of 
the  state  are  valid  or  will  be  admitted.  So  discordant  is 
the  voice  of  the  state  from  those  of  the  churches,  that  there 
is  no  longer  an  established  church,  outside  England,  in  the 
whole  of  the  British  empire,  and  free  churches  mean  every- 
where a  limitation  of  the  state.  The  absolutism  of  the  state, 
upon  which  Hobbes  and  Austin  dilated,  is,  in  fact,  an 
ambiguous  term.  Within  its  sphere  the  state,  whatever  its 
form,  must  possess  a  final  authority,  but  that  authority, 
while  absolute  in  degree,  is  not  unlimited  in  extent.  The 
state  therefore  can  only  be  built  on  foundations  that  lie 
within  its  jurisdiction;  and  it  is  only  by  recognizing  the 
limits  of  its  sphere  that  the  state  can  expect  recognition 
of  its  authority  within  that  sphere.  Theology,  if  not  religion, 
certainly  lie  outside;  the  state  does  not  now  dream  of 
establishing  truth  and  is  even  shy  of  creating  legal  fictions. 
The  circumstance  that  Germany  acted  on  Hobbes's  maxim, 
"  in  the  right  governing  of  opinion  consist eth  the  right 
government  of  man,"  indicated  a  fundamental  distinction 
between  British  and  German  conceptions  of  the  state. 
Attempts  on  the  part  of  the  state  to  determine  language 
are  also  illegitimate,  and  constitute  a  manifold  cause  of 
friction.  Social  customs  are  an  equally  dangerous  field 
of  interference;  and,  in  spite  of  recent  appearances,  there 
are  grounds  for  maintaining  that  the  absolutism  of  the  state 
has  been  purchased  by  the  limitation  of  its  sphere,  and  that 
its  theoretical  omnicompetence  depends  upon  the  widening 
circle  of  things  it  does  not  attempt.  It  is  at  least  perfectly 
clear  that  if  the  British  realms  are  to  be  a  state,  the 
jurisdiction  of  that  state  will  be  severely  restricted. 

But  again,  the  problem  may  be  obscured  by  the  inevitable 
use  of  the  term  *'  the  state."  It  is  easier  to  conceive  of  the 
British  realms  forming  a  community,  or  perhaps  a  common- 
wealth ;  and  the  absolutism  of  the  community  does  not  sug- 
gest the  same  perplexities  as  the  absolutism  of  the  state. 
For  one  thing,  it  does  not  imply  antithesis  to  the  church. 


364  THE  EVOLUTION  OF  PARLIAMENT 

It  does  not,  in  fact,  isolate  one  aspect  of  human  activity  and 
proclaim  its  supremacy  over  all  the  rest.  Even  those  who 
hold  that  the  state  is  man  in  the  state,  often  lose  sight  of 
man  in  the  state,  just  as  others  lose  sight  of  man  in  the 
church.  This  veiling  of  humanity  breeds  a  greater  antithesis 
between  church  and  state  than  there  is  between  man  as  a 
political  animal  and  man  as  a  religious  being ;  and  the  com- 
munity or  commonwealth  embraces  both,  promoting  concord 
in  the  place  of  conflict.  Concord,  however,  is  only  possible 
in  the  British  realms  through  the  surrender  of  much  that 
clings  to  the  state,  its  uniformity  and  its  omnicompetence, 
if  not  also  its  appearance  of  unity.  The  old  French  ideal 
of  une  foiy  une  lot,  un  roi  is  clearly  unattainable;  the 
British  realms  have  one  king,  but  they  have  many  faiths 
and  many  legal  systems,  and  only  such  unity  is  possible  as 
is  compatible  with  an  infinite  variety. 

Underlying  these  varieties  there  is,  however,  room  for 
one  foundation.  Indeed,  it  is  no  paradox  to  say  that  the 
greater  is  men's  attachment  to  their  particular  culture,  the 
greater  is  their  need  of  the  British  empire.  The  self-sufficient 
independence  and  seclusion  of  small  communities  is  in  a 
parlous  state  to-day,  when  might  is  ever  growing  and  the 
world  is  ever  shrinking;  and  liberty  within  the  British 
empire  is  a  better  security  than  independence  beyond  its 
pale.  The  case  would  be  different  if  the  purpose  of  the 
British  empire  were,  as  it  has  been  alleged,  to  give  each 
of  its  citizens  an  English  mind.  The  idea  of  the  British 
empire  is,  rather,  to  provide  its  citizens  with  the  means  of 
developing  minds  of  their  own,  and  no  sane  Briton  wishes 
to  make  a  French-Canadian  indistinguishable  from  a  South 
African  Boer,  or  even  a  Welshman  exactly  like  a  Scot. 
There  are  many  mansions  in  the  British  empire,  and  no 
one  wants  to  build  them  all  alike  or  fill  them  with  a  homo- 
geneous population.  For  that  and  for  other  reasons,  empire 
is  not  a  happy  term;  it  impHes  an  unconstitutional 
authority,  military  domination,  and  rigid  uniformity.  The 
essence  of  the  British  realms  is  government  by  consent, 
liberty,  and  heterogeneity. 


THE  BRITISH  REALMS  IN  PARLIAMENT         365 

This  freedom  to  develop  along  lines  of  their  own  is  the 
quality  in  the  empire  which  its  dominions  value  most; 
and  it  might  seem  that  here  was  substance  enough  without 
grasping  at  the  shadow  of  an  imperial  sovereign  state. 
Indeed,  the  imperative,  exigent  tone  of  the  absolute  claims  of 
state  sovereignty  involve  no  little  risk  to  the  finer  threads 
of  feeling  which  really  unite  the  British  realms.  It  is  not 
as  a  state  which  extorts,  but  as  a  community  which  grants, 
that  a  British  commonwealth  may  develop  a  common 
organization.  No  British  realm  will  merge  itself  in  an  abso- 
lute British  commonwealth,  after  Hobbes's  conception  of  a 
commonwealth  by  institution,  when  every  man  was  supposed 
to  have  surrendered  all  his  rights,  including  his  rights  of 
conscience  and  private  judgement,  to  a  common  despot. 
The  compact  would  necessarily  be  a  combination  of  Hobbes's 
and  Locke's  ideas  :  it  would  be  an  agreement  among  the 
British  realms  to  set  up  a  single  imperial  government,  but 
only  for  certain  purposes,  and  the  compact  would  be  a 
treaty  by  which  the  imperial  state  would  be  bound.  It 
could  not  be  an  absolute  state.  Even  in  that  model  union 
of  1707  Scotland  reserved  its  religion,  its  law,  and  its  justice, 
and  required  specific  advantages.  It  will  be  long  ere  British 
realms  consent  to  a  uniform  tariff  policy,  or  to  a  common 
taxation.  Indeed,  a  common  taxation  is  impossible  where 
conditions  are  so  divergent :  import  duties  on  com,  which 
Canada  would  not  feel,  would  ruin  the  English  working 
classes.  Land  taxes  which  Australia  and  New  Zealand 
bear  with  equanimity,  would  revolutionize  English  society. 
Neither  the  dominion  of  Canada  nor  the  commonwealth  of 
Australia  has  yet  been  able  to  impose  direct  taxation  on  its 
component  provinces  and  states ;  and  to  imagine  a  central 
government  in  London  imposing  on  the  dominions  what  the 
dominions  cannot  impose  on  their  provinces  is  a  phantasma- 
goria of  visionary  enthusiasm. 

Political  unions  which  last  are  not  made  in  a  moment  nor 
without  the  co-operation  of  deep-seated  causes ;  and  there 
is  always  danger  in  arbitrarily  selecting  one  out  of  the  many 
forms  of  union  adopted  in  British  realms  and  imposing  that 


366  THE  EVOLUTION  OF  PARLIAMENT 

as  a  standard  on  others.  The  Anglo-Scottish  and  the  South 
African  unions,  even  if  we  add  New  Zealand,  do  not  consti- 
tute a  rule.  Against  the  Scottish  must  be  set  the  Irish 
union,  by  way  of  warning  and  not  of  example ;  and  against 
the  South  African  and  New  Zealand  constitutions  must  be 
set  the  federation  of  Canada  and  the  still  looser  combination 
of  the  states  of  Austraha.  There  remain  the  disunited 
West  Indies,  scores  of  other  colonies,  and  the  empire  of 
India,  with  its  hundreds  of  semi-independent  principahties. 
They  represent  every  stage  of  political  development ;  and 
democratic  expedients  which  suit  Canada  and  Australia 
would  be  disastrous  in  other  realms  of  the  empire.  No 
common  standard  of  self-government  is  applicable,  and  it 
is  irrational  to  suppose  that  a  central  authority  could  rule 
these  diverse  dominions  so  well  as  the  expert  and  specialized 
governments  which  control  them  at  present.  The  govern- 
ment of  the  empire  is,  in  fact,  only  possible  through  a  diver- 
sity of  methods  adapted  to  a  diversity  of  needs;  and  only 
the  elasticity  of  mind,  which  comes  of  political  aptitude  and 
experience,  tolerates  such  diversity.  If  the  average  British 
elector  really  determined  such  questions  as  the  locality  of 
an  Indian  capital  or  the  careful  adjustment  of  Indian 
self-government  and  the  Indian  civil  service,  he  would 
decide  them  by  the  sort  of  criteria  he  applies  to  his  own 
local  environment,  and  the  result  would  be  chaos. 

No  doubt  men  are  heedless  of  things  for  which  they  are  not 
responsible,  and  the  increase  of  responsibility  is  a  potent 
factor  in  political  education;  but  the  imperfection  of  the 
result  in  matters  for  which  the  responsibility  is  immediate 
and  direct,  counsels  caution  in  our  expectations  from  a 
responsibility  which  cannot  be  felt.  It  has  often  been 
said  that  a  democracy  cannot  govern  an  empire ;  the  truth 
is,  that  an  empire  such  as  the  British  cannot  be  governed  on 
exclusively  democratic  principles,  and  democracy  is  apt  to 
regard  its  principles  as  valid  at  all  times  and  under  all  circum- 
stances, and  as  matters  of  simple  right  and  wrong  which 
only  original  sin  leads  men  to  dispute.  It  is  easy  to  say  that 
imperial  questions  should  be  decided  by  an  imperial  elector- 


THE  BRITISH  REALMS  IN   PARLIAMENT         367 

ate ;  it  is  less  easy  to  define  that  electorate,  and  still  less  so 
to  create  it.  We  doubt  the  expediency  of  giving  a  vote 
in  Indian  affairs  to  an  Indian  electorate  which  cannot  read 
or  write ;  to  give  them  a  vote  on  all  the  affairs  of  the  British 
realms  would  be  a  fantastic  form  of  imperial  suicide.  The 
problem  of  colour  would  be  accentuated  and  not  exorcised  by 
a  popularly-elected  parliament  representative  of  the  empire ; 
and  no  principle  is  sounder  in  practice  than  that  which  denies 
responsible  self-government  even  to  Englishmen  who  are 
a  handful  among  a  vast  coloured  population.  The  great 
dominions  deservedly  call  for  a  greater  share  in  the  control 
of  imperial  policy,  but  we  cannot,  in  reconstructing  the 
empire,  ignore  our  own  West  Indian  history,  or  the  practical 
limitations  under  which  the  United  States  pretends  to  com- 
bine democratic  principle  with  the  facts  of  the  negro  question. 
Practically  the  problem  of  an  imperial  parliament  which 
shall  represent  more  than  the  British  Isles  resolves  itself 
into  a  question  of  how  to  include  Canada,  Australia,  New 
Zealand,  South  Africa,  and  Newfoundland;  and  thus 
limited,  it  is  not  entirely  impracticable,  provided  that  an 
enthusiasm  as  unhistorical  in  its  outlook  as  that  of  the  first 
French  Revolution  does  not  seek  to  solve  it  wholly  at  one 
gigantic  autd-de-fe}  There  are  common  foundations  on 
which  to  work.  Common  politics,  as  the  genesis  of  parlia- 
ment has  shown,  are  the  outcome  of  common  law,  and  English 
law  is  the  groundwork  of  all  colonial  constitutions.  A 
judicious  admixture  of  Roman  law  and  other  systems  is 
not  inadmissible,  as  we  know  from  Scotland  and  South 
Africa ;  but  one  of  the  most  fruitful  suggestions  for  empire- 
building  was  made  by  Lord  Haldane,  when  he  outlined  a 
proposal  that  the  judicial  committee  of  the  privy  council 
should  periodically  appear  in  sessions  throughout  the  British 
realms.  By  such  judicial  eyres  Henry  II  had  brought 
royal  justice  home  to  his  subjects  and,  more  important 
from  our  point  of  view,  had  made  the  same  law  common  to 

1  Auto-de-fe  is  properly  an  "  act  of  faith  " ;  it  came  to  mean  a  holocaust, 
and  the  auto-de-fe  proposed  in  some  quarters  would  involve  a  holocaust 
of  the  many  constitutions  in  the  empire. 


368  THE  EVOLUTION  OF  PARLIAMENT 

all  England.  Thus  he  had  done  more  perhaps  than  any  one 
else  to  create  an  England  out  of  a  congeries  of  tribes.  The 
diversities  of  law  throughout  the  empire  to-day  are  not  more 
multifarious  than  those  in  the  mother  country  in  the  eleventh 
century ;  and  the  court  that  could  hammer  out  and  apply  a 
common  law  of  the  British  realms  would  be  doing  as  much 
to  create  a  united  empire  as  Henry  II  and  his  judges  did  to 
make  England  by  creating  its  common  law. 

Without  this  common  law  parliament  could  not  have 
grown ;  and,  indeed,  it  was  well  that  the  common  law  was 
the  plastic  work  of  judges,  and  not  the  cast  iron  of  a  parlia- 
mentary statute.  No  one  could  have  drafted  it  or  put  it 
into  an  act;  it  had  to  grow  from  case  to  case  through 
centuries  of  judicial  argument  and  experience,  and  various 
were  the  materials  moulded  together  into  the  final  product. 
It  was  but  partly  Anglo-Saxon ;  and  an  imperial  common 
law  would  leave  out  a  great  deal  that  is  English,  particu- 
larly in  the  sphere  of  real  property,  and  would  incorporate 
some  things  that  are  not.  So,  too,  it  will  not  be  made 
by  statute  or  embodied  in  a  code;  it  must  needs  be  the 
outcome  of  judicial  experience  garnered  by  the  highest 
legal  minds  in  sessions  throughout  the  empire.  Statutes 
might  come  later  :  the  judges  of  the  king's  court  not  only 
gathered  experience  on  their  eyres,  discussed  it  in  common 
sessions  of  the  council,  and  applied  it  in  Westminster  Hall ; 
they  also  drafted  their  deductions  into  statutes,  which  were 
promulgated  in  the  high  court  of  parliament.  So  our 
imperial  justices-in-eyre  might  draft  into  statutes  for  sub- 
mission to  an  imperial  parliament  the  fruits  of  their  imperial 
missions. 

Their  labours  would  be  facilitated  and  their  prospects 
improved  by  their  restoration  to  something  of  their  original 
status  in  the  constitution.  Their  gradual  degradation,  as 
the  king's  council  in  parliament  was  perverted  into  a  house  of 
lords,  was  doubly  unfortunate ;  it  impaired  the  constitutional 
authority  of  the  judges  and  the  legislative  skill  of  parliament ; 
for,  however  expert  may  be  the  staff  of  our  present  drafting 
department,  its  members  have  not  the  experience  of  the 


THE  BRITISH  REALMS  IN  PARLIAMENT        369 

judges  who  were  wont  to  determine  the  form  of  legislation. 
It  led  also  to  the  illogical  growth  of  two  supreme  courts  of 
appeal.  The  judicial  committee  of  the  privy  council  repre- 
sents the  king's  council  out  of  parliament;  the  law  lords 
represent  the  king's  council  in  parliament.  But  these  two 
courts  were  not  in  earlier  times  co-ordinate;  the  medieval 
king's  council  in  parliament  was  superior  to  the  king's  council 
out  of  parliament,  could  resolve  its  doubts,  remedy  its  errors, 
and  direct  its  action.  It  might  have  retained  its  superiority 
but  for  the  reduction  of  the  judges  of  the  council  in  parlia- 
ment to  the  status  of  assistants  in  a  house  of  uninstructed 
peers.  The  intrusion  of  an  hereditary  caste  into  the 
technical  sphere  of  appellate  judicature  was  the  cause  of  the 
disjunction;  it  was  removed  when  the  peers  abstained 
from  exercising  the  judicial  functions  they  had  assumed ;  and 
there  seems  no  adequate  reason  why  the  two  courts  should 
not  be  united  into  a  single  supreme  imperial  court  of  justice. 
The  personnel  of  the  two  courts  has  much  in  common ;  but 
the  lords  sit  in  some  state  to  hear  appeals  from  the  British 
Isles,  while  the  judicial  committee  shrouds  itself  in  mean 
obscurity  to  hear  those  from  great  dominions  overseas 

The  house  of  lords  might  possibly  be  used  for  further 
imperial  purposes.  No  sane  politician  wantonly  interferes 
with  vigorous  institutions,  but  the  house  of  lords  is  mori- 
bund ;  it  has,  in  any  event,  to  undergo  a  radical  reformation, 
and  the  peers'  necessity  is  the  statesman's  opportunity. 
It  is,  at  any  rate,  worth  inquiry  whether  the  house  of  lords 
could  not  be  reconstituted  to  meet  in  some  degree  the  desire 
for  a  more  adequate  representation  at  Westminster  of  our 
overseas  dominions.  An  attempt  at  reform  in  this  direction 
would  necessarily  involve  the  abandonment  of  the  principles 
of  heredity  and  primogeniture.  None  of  the  overseas 
dominions  has  tolerated  the  introduction  of  these  principles 
into  their  councils  or  their  legislatures;  and  an  imperial 
chamber  based  upon  them  would  have  no  attraction  for 
the  empire  as  a  whole.  Nor,  as  a  matter  of  fact,  would  it 
receive  much  serious  support  within  the  British  Isles. 

The  difficulty  is  to  find  some  principle  that  does  commend 

BB 


370  THE  EVOLUTION  OF  PARLIAMENT 

itself  as  the  basis  for  a  second  chamber.  Various  expedients 
have  been  tried  in  different  parts  of  the  empire.  Second 
chambers  have  been  selected  by  nomination,  sometimes  for 
Ufe,  sometimes  for  a  period  of  years.  They  have  been  consti- 
tuted by  election,  sometimes  on  a  restricted,  and  sometimes 
on  a  democratic  franchise,  sometimes  by  small  constituencies, 
sometimes  by  provinces  as  a  whole.  The  result  has  every- 
where been  much  the  same,  and  second  chambers  are  the 
political  failure  of  the  British  empire.  It  is  not  only  in  the 
British  Isles  that  a  second  chamber  is  threatened  with 
mending  or  ending  :  the  cry  is  also  heard  in  Canada,  where 
the  second  chamber  is  filled  by  nomination,  and  in  the  states 
of  Australia,  where  it  is  elected.  The  truth  seems  to  be  this  : 
it  is  doubtful  wisdom  to  set  two  bodies  of  men  to  do  the  same 
work ;  but,  admitting  the  wisdom,  the  two  bodies  should  not 
be  alike.  The  house  of  lords  has  probably  given  more 
whole-hearted  satisfaction,  albeit  to  a  minority,  than  any 
other  second  chamber  in  the  empire,  because  it  is  so  unHke 
the  house  of  commons.  If  the  British  realms  are  to  be 
asked  to  abandon  any  part  of  their  constitutions  to  the 
imperial  meiting-pot,  they  will  one  and  all  find  it  easier 
to  sacrifice  their  second  chamber  than  anything  else ;  and 
it  is  not  at  all  impossible  that  something  might  be  made 
of  this  refuse  in  the  imperial  crucible. 

A  hint  might  perhaps  be  borrowed  from  the  United  States. 
Its  senate  is  not  by  any  means  an  ideal  body,  though  the 
recent  change  to  the  popular  election  of  its  members  may 
make  it  more  responsible ;  but  it  is  undeniably  the  strongest 
second  chamber  in  any  Anglo-Saxon  community,  and  its 
strength  is  due  to  the  fact  that  it  is  based  on  a  clear  principle, 
distinct  from  that  of  the  house  of  representatives.  The 
house  represents  the  people  of  the  United  States  as  a  whole ; 
the  senate  represents  the  states  of  which  the  union  is  formed, 
and  it  is  the  special  guardian  of  their  rights.  The  house  is 
based  on  numerical  population;  the  senate  contains  two 
representatives,  and  no  more,  from  every  state,  whatever 
Its  population.  A  house  of  lords,  reconstituted  so  as  to 
comprise  representatives  from  every  British  realm  and  colony 


THE  BRITISH  REALMS  IN  PARLIAMENT         371 

would  not  be  more  out  of  touch  with  the  British  electorate 
than  it  is  at  present ;  it  would  be  vastly  more  capable,  and 
its  value  as  the  king's  imperial  council  in  parliament  would 
be  far-reaching.  The  vast  majority  of  electors  in  the  British 
Isles  would  gladly  see  some  such  body  substituted  for 
their  existing  house  of  lords,  and  it  is  quite  possible  that  the 
dominions  would  consent  to  a  similar  substitution.  There 
would  thus  in  the  British  empire  be  a  variety  of  first 
chambers,  but  a  single  second  chamber,  constituted  on  a 
principle  which  would  give  it  weight  and  independence. 
It  would  possess  a  qualification  indispensable  in  an  efficient 
second  chamber,  namely,  a  differential  basis  from  the  first. 
There  would  be  no  doubt  about  its  strength ;  there  might 
be  some  fear  that  its  strength  would  impair  the  demo- 
cratic self-government  of  the  individual  realms,  but  this 
danger  would  be  met  by  differential  work  corresponding 
to  its  differential  basis. 

Politics  stand  in  constant  need  of  searching  analysis,  and 
nothing  confuses  political  thought  more  seriously  than  the 
assumption  that  democracy  means  the  determination  of  all 
political  issues  by  popular  vote.  In  practice  democracy 
combines  with  it  a  strong  admixture  of  monarchy  and 
aristocracy ;  a  British  prime  minister  is  more  of  a  monarch 
than  many  who  bear  the  title,  and  some  have  approached 
dictatorship;  a  cabinet  is  a  genuine  aristocracy,  because 
cabinet  rank  is  (as  a  rule)  attained  by  merit  and  not 
by  inheritance.  Both  institutions  are  essential  to  modem 
democracies.  It  has,  moreover,  already  been  pointed  out 
that  whole  categories  of  public  questions  are  decided 
without  reference  to  the  electorate.  The  dividing  line 
between  those  which  are,  and  those  which  are  not  deter- 
mined by  the  ballot,  is  naturally  and  properly  determined 
by  the  electors,  not  consciously,  but  through  the  influences 
to  which  their  minds  are  subject.  An  issue  on  which 
many  votes  will  be  turned  will  infallibly  be  brought  with 
prominence  before  the  electors ;  an  issue  to  which  they  are 
indifferent  will  be  decided  without  a  popular  ^consultation. 
The  foreign  policy  initiated  by  Lord  Lansdowrie  in  1903-4 


372  THE  EVOLUTION  OF  PARLIAMENT 

was  an  issue  of  supreme  importance;  but  no  one  dreamt 
of  fighting  a  general  or  even  a  by-election  upon  it.  Even  the 
sanction  of  the  house  of  commons  was  not  required  for  it, 
or  for  such  a  step  as  the  grant  of  responsible  self-government 
to  the  Boer  colonies.  On  the  other  hand,  no  cabinet  could 
sanction  a  reUgious  catechism  in  elementary  schools,  limit 
the  number  of  public-houses,  or  carry  a  scheme  for  national 
insurance  without  risking  shipwreck  on  the  rock  of  popular 
indignation.  The  line  between  the  two  categories  of  public 
questions  is  not,  of  course,  hard  and  fast;  but  it  is  deep 
enough  to  provide  a  discrimination  between  the  functions 
of  a  popularly-elected  house  of  commons  and  an  imperially- 
constituted  second  chamber.  The  latter  would  thus  have 
differential  work  as  well  as  a  differential  foundation. 

The  change  would  involve  an  act  of  imperial  union,  an 
expansion  of  sphere,  and  a  specialization  of  function.  The 
second  chambers  of  the  empire  would  be  formed  into  one, 
the  sphere  of  which  would  be  expanded;  and  instead  of 
each  realm  having  two  chambers  performing  similar  func- 
tions, the  imperial  second  chamber  would  specialize  on 
imperial  questions,  and  the  first  chambers  on  domestic 
questions.  This,  it  may  be  objected,  provides  for  two  cham- 
bers, but  not  for  the  functions  assigned  by  convention  to 
a  second  chamber.  Both  would,  so  to  speak,  be  courts  of 
first  instance,  and  there  would  be  no  court  of  appeal.  The 
objection  is  not  irrelevant ;  but  the  inadequacy  with  which 
second  chambers  have  fulfilled  their  function  as  courts  of 
appeal  from  the  first,  however  they  have  been  constituted,^ 
suggests  the  doubt  whether  it  is  a  legitimate  function. 
No  second  chamber,  in  fact,  claims  any  right  to  decide  the 
appeal,  and  a  court  of  appeal  which  cannot  decide  seems 
somewhat  superfluous.  The  real  court  of  appeal  from  a 
first  chamber  is  not  the  second  chamber,  but  the  electorate ; 
and  of  recent  years  second  chambers  have  generally  con- 
fined their  claims  to  a  right  of  reference.  The  necessity  foi 
this  safeguard  clearly  depends  upon  the  period  for  which 
the  first  chamber  is  immune  from  a  general  election ;  and 
a  shortening  of  that  period  might  be  a  simpler  method  of 


J 


THE  BRITISH  REALMS  IN  PARLIAMENT         373 

bringing  home  responsibility  than  the  somewhat  spasmodic 
action  of  second  chambers.  If,  however,  this  power  of 
reference  were  retained,  it  would  be  exercised  to  more 
general  satisfaction  by  an  imperial  chamber  than  it  is  by 
existing  institutions.  The  universal  complaint  is  that  the 
power  of  reference  is  invariably  used  for  party  purposes, 
and  the  general  demand  is  for  its  impartial  exercise.  Now 
impartiality  can  surely  be  expected  with  greater  confidence 
from  a  chamber  composed  of  members  drawn  from  all  parts 
of  the  empire,  and  mostly  without  party  interest  in  the 
dispute,  than  from  local  chambers  consisting  almost 
exclusively  of  members  belonging  to  the  parties  involved. 
Independence  would  accompany  impartiality,  and  inasmuch 
as  the  issues  are  always  between  two  political  parties  of 
which  neither  chamber  is  now  independent,  the  question  of 
reference  to  the  electorate  would  better  be  left  to  a  body 
containing  at  least  a  large  external  element. 

A  more  fundamental  problem  would  be  the  control  by  the 
lower  chamber  of  the  functions  and  powers  of  the  upper. 
There  is  no  escape  from  the  tyranny  of  finance  :  he  who 
pays  the  piper  calls  the  tune,  and  the  chamber  which  finds 
the  revenue  will  determine  its  destination  and  define  the 
objects  upon  which  it  shall  be  expended.  The  deduction 
will  be  drawn  that  there  can  be  no  imperial  unity  unless 
the  single  imperial  second  chamber  controls  imperial  finance. 
If  that  deduction  is  valid,  imperial  unity  is  a  distant  prospect  j 
for  a  single  taxing  assembly  for  the  whole  empire  is  not  yet 
possible,  however  complete  its  representative  character 
might  be.  Taxes  are  things  which  electors  feel,  and  upon 
which  they  really  do  vote  at  elections.  The  parts  are  not 
so  lost  in  the  whole  that  Australians  and  Canadians  will 
pay  taxes  imposed  by  a  chamber  in  which  Australia  and 
Canada  would  have  a  vote,  but  not  a  veto ;  and  Polish  history 
tells  the  tale  of  assemblies  in  which  individual  delegates 
have  a  lihenim  veto.  Whatever  imperial  revenue  may  be 
required  will  have  to  be  granted  by  the  individual  representa- 
tive chambers  of  the  several  realms.  Those  chambers 
would  act  like  the  estates  of  a  medieval  parliament :    the 


374  THE  EVOLUTION  OF  PARLIAMENT 

financial  needs  of  the  empire  would  be  laid  before  them, 
and  each  would  make  its  own  response  in  the  form  of  a  grant. 
Each,  too,  would  be  responsible  for  its  methods  of  assessment, 
incidence,  and  collection.  In  one  dominion  the  imperial 
contribution  might  be  raised  by  a  tariff,  in  another  by  income- 
tax  ;  in  one  by  a  tax  on  land,  in  another  by  an  excise  duty 
on  spirits.  The  essential  condition  would  be  that  each 
would  manage  its  own  finance,  for  no  British  realm  would 
tolerate  intervention  in  so  domestic  a  matter.  The  one 
source  of  revenue  which  might  conceivably  be  at  the  disposal 
of  an  imperial  second  chamber  would  be  an  imperial  tariff  ; 
but  the  reorganization  of  the  empire  will  have  some  time 
to  wait  if  it  is  postponed  to  the  adoption  of  that  proposal. 
No  one  can  circumscribe  the  future,  and  the  British  realms 
may  grow  so  close  together  that  not  merely  an  imperial 
tariff,  but  an  imperial  income-tax  might  be  levied  by  a 
single  imperial  chamber.  We  are  considering  less  distant 
possibilities. 

It  does  not  follow  that  even  during  this  interim  the 
imperial  chamber  would  be  impotent  in  finance  because  it 
could  not  levy  taxation.  A  chancellor  of  the  exchequer  is 
not  powerless  because  he  cannot  tax  by  edict,  and  it  is 
quite  possible  to  conceive  the  financial  recommendations  of 
an  imperial  council  having  as  much  weight  with  the  voters 
of  taxes  as  the  proposals  of  a  chancellor.  The  imperial 
council  would  frame  estimates  of  the  expenditure  needed  for 
imperial  purposes ;  it  would  suggest  the  distribution  of  the 
burden;  and  from  a  body,  in  which  all  the  realms  were 
properly  represented,  it  would  not  be  unreasonable  to  expect 
an  equitable  allocation.  Given  these  conditions,  the  indi- 
vidual chamber  which  refused  to  provide  its  share  of  supply 
would  be  incurring  a  grave  responsibility  and  a  serious  risk 
of  forfeiting  the  confidence  of  its  constituents.  Common 
feeling  and  public  opinion  is  already  keen  enough  throughout 
the  empire  to  guarantee  the  readiness  of  each  of  the  realms 
to  shoulder  a  share  in  the  common  burden. 

So  far  we  have  got,  in  our  imaginary  constitution,  one 
crown  and  one  imperial  chamber,  combined  with  a  variety 


THE  BRITISH  REALMS  IN  PARLIAMENT         375 

of  houses  of  commons  or  representatives.  The  crucial  point 
is  the  question  of  the  executive.  The  anomaly  of  the 
existing  constitution  is  the  existence  of  an  imperial  executive 
without  any  regular  relation  or  responsibility  to  an  imperial 
chamber.  It  is  responsible  solely  to  the  British  house  of 
commons,  and  other  British  realms  have  no  formally  re- 
organized constitutional  right  to  any  share  of  control  over  the 
foreign  policy  in  which  they  are  involved,  or  the  declaration 
of  wars  in  which  they  spend  their  lives  and  treasure.  Tenta- 
tive steps  have,  indeed,  been  taken  to  mitigate  this  anomaly  : 
at  the  last  imperial  conference  before  the  war,  Sir  Edward 
Grey  admitted  its  members  to  the  secrets  of  British  foreign 
policy,  and  more  recently  the  prime  ministers  of  Canada, 
Australia,  and  South  Africa  have  attended  British  cabinet 
meetings.  It  is  well  that  the  elasticity  of  our  constitution 
should  permit  of  such  experiments  and  should  oppose  no 
bar  to  the  growth  of  a  really  imperial  cabinet.  Much  of  the 
constitution  has  been  erected  in  this  tentative  way  without 
formal  legislation;  and  it  would  be  rash  to  abandon  that 
method  for  the  alternative  plan  of  constitution  spinning. 

But  even  tentative  steps  must  have  a  direction  and  goal ; 
and  we  might  have  a  clearer  idea  of  direction  if  we  could 
know  what  was  said  to  and  by  Sir  Robert  Borden,  Mr. 
Hughes,  and  General  Botha  during  the  cabinet  meetings 
made  famous  by  their  presence.  We  might  also  gather  some 
hints  from  Lord  Kitchener's  attitude  during  the  cabinet 
deliberations  on  the  Welsh  church  suspensory  bill  or  the 
home  rule  act  in  September  1914.  He  was  in  the  cabinet 
for  the  purposes  of  the  war,  and  Sir  Robert  Borden,  Mr. 
Hughes,  and  General  Botha  were  asked  to  attend  in  the 
interests  of  the  empire.^  What  would  they  have  said  on 
peaceful  domestic  topics  like  Mr.  Lloyd  George's  budget 
of  1910  or  insurance  bill  of  1912  ?  The  role  of  a  sleeping 
partner  would  have  been  the  most  convenient  attitude; 
and  a  cabinet  of  the  empire  would  be  atrophied  for  domestic 

*  From  1 91 7  to  191 9  General  Smuts  was  a  full  member  of  the  war 
cabinet;  and  the  problem  now  is  to  adapt  the  temporary  expedieats  of 
war  to  the  permanent  uses  of  peace. 


376  THE  EVOLUTION  OF  PARLIAMENT 

purposes,  just  as  a  domestic  British  cabinet  too  nearly 
approaches  atrophy  for  the  purposes  of  the  empire.  The 
divergence  leads  straight  towards  two  sets  of  executives  : 
a  single  executive  for  imperial  purposes  responsible  to  the 
single  imperial  chamber,  and  a  series  of  domestic  executives 
for  each  self-governing  realm  responsible  to  their  respective 
domestic  legislatures.  The  control  at  present  exercised 
by  the  British  government  over  India  and  those  colonies 
which  do  not  possess  responsible  self-government  would 
naturally  be  vested  in  the  imperial  cabinet  and  imperial 
chamber. 

Such  an  arrangement  would  involve  both  a  definition  of 
functions  and  the  provision  of  means  to  prevent  a  division 
of  will.  The  evil  to  be  avoided  is  the  conflict  of  jurisdictions ; 
and  two  independent  sets  of  executives  and  legislatures, 
one  dealing  with  imperial  and  the  other  with  domestic 
affairs,  would  be  certain  to  come  into  conflict  unless  there 
were  means  of  regulating  their  relations  with  one  another. 
Here  again  finance  would  be  the  determining  factor ;  and  the 
chambers,  which  controlled  supply  and  the  domestic  execu- 
tives, must  also  control,  directly  or  indirectly,  the  imperial 
chamber  and  the  imperial  cabinet.  The  imperial  cabinet 
would  be  immediately  responsible  to  the  imperial  chamber, 
but  the  imperial  chamber  itself  would  be  responsible  to 
the  dominions.^  Its  members  might  be  selected  by  three 
alternative  methods  :  they  might  be  the  nominees  of  the 
domestic  dominion  executives;  they  might  be  chosen  by 
the  domestic  dominion  legislatures ;  or  they  might  be  elected 
by  the  peoples  of  the  dominions.  The  objection  to  the  last 
method  is  that  imperial  issues  do  not,  as  a  rule,  evoke  any 
wide  and  intelligent  popular  interest,  and  the  local  qualifica- 
tions which  commend  candidates  to  so  many  constituencies 
are  singularly  out  of  place  in  an  imperial  election.  The 
objection  to  the  second  is  that  indirect  election  usually 
fails  of  its  object :  the  American  college  of  electors,  which 
was  intended  to  collect  the  wisdom  of  the  nation,  consists 
of  ciphers;  while  the  conduct  of  United  States  senators 
^  The  word  is  intended  to  include  Great  Britain  and  Ireland. 


THE  BRITISH  REALMS  IN  PARLIAMENT         377 

has  been  explained  on  the  ground  that  they  were  elected 
by  legislatures,  and  not  by  the  people,  and  election  by  legis- 
latures has  recently  been  abandoned  in  favour  of  popular 
choice.  An  American  senator  is,  however,  the  special 
representative  of  local  interests ;  the  members  of  an  imperial 
British  chamber  would  be  chosen  for  an  exactly  contrary 
purpose,  and  a  different  method  might  be  more  appropriate. 
They  would  resemble  the  agents-general  of  the  dominions, 
and  might  be  appointed  by  similar  means.  The  superficial 
resemblance  of  such  a  chamber  to  the  old  bundesrath  of 
the  German  empire  may  be  enough  to  condemn  it  for  the 
moment.  But  there  would  be  two  fundamental  differences  : 
firstly,  the  members  of  the  bundesrath  were  appointed  by 
governments  which  were  not  responsible  to  the  people  of 
the  states  they  represented;  and  secondly,  our  imaginary 
chamber  would  not  possess  the  extensive  control  which  the 
bundesrath  exercised  over  domestic  legislation.  It  would, 
no  doubt,  be  desirable  to  synchronize  general  elections 
throughout  the  empire,  and  the  new  dominion  governments 
would  thus  simultaneously  select  their  representatives  to 
the  imperial  chamber.  But  this  would  hardly  be  possible ; 
and  a  change  of  dominion  government  would  not  necessarily 
involve  a  recall  of  imperial  representatives  any  more  than 
it  does  a  substitution  of  agents-general,  or  a  change  in  the 
British  government  involves  a  re-appointment  of  ambas- 
sadors or  of  members  of  the  imperial  defence  committee. 

There  remains  the  problem  of  delimiting  the  spheres  and 
powers  of  the  imperial  chamber  and  the  dominion  houses 
of  commons.  It  is  thorny  enough,  but  there  is  no  reason 
to  think  it  more  insoluble  than  the  kindred  problem  of 
defining  the  respective  spheres  of  dominion  and  provincial 
parliaments  in  Canada  or  Australia.  Most  of  the  functions 
of  government  are  sorted  by  nature  into  one  or  other 
category.  Foreign  affairs,  imperial  defence,  issues  of  war 
and  peace,  belong  obviously  to  imperial  government; 
questions  of  religion,  education,  the  franchise,  social  reform, 
labour  problems,  public  health,  insurance,  appertain  no 
less  distinctly  to  the   domestic  sphere  of    the  dominion 


378  THE  EVOLUTION   OF  PARLIAMENT 

parliaments.  Between  the  two  spheres  there  hes  an  impor- 
tant borderland,  including  the  treatment  of  native  races, 
commercial  policy,  naturahzation,  citizenship,  and  marriage ; 
and  it  would  be  essential  to  leave  its  frontiers  as  elastic  as 
possible.  There  might  be  concurrent  rights  of  legislation, 
while  the  growth  of  unity  would  facilitate  a  gradual  increase 
of  imperial  influence  in  this  sphere.  There  would  have  to 
be  a  written  constitution,  but  the  less  of  it  the  better.  The 
working  of  a  constitution  never  really  depends  upon  its 
form,  but  upon  the  spirit  which  informs  it.  If  the  peoples 
of  the  British  realms  want  a  united  empire  with  a  common 
government,  they  will  got  it  and  will  work  it,  whatever  the 
defects  of  its  constitution.  If  they  do  not,  no  constitutional 
machinery,  however  artistic  its  construction,  will  attract 
them. 

Nor  is  it  of  much  use  attempting  to  frighten  them  into 
political  upheaval  by  logical  dilemmas,  after  the  fashion  of 
Hobbes's  idea  of  the  social  contract.  According  to  him  the 
life  of  man  in  the  state  of  nature  was  *'  nasty,  short,  brutish 
and  mean,"  so  intolerable,  in  fact,  that  he  was  left  no 
option  but  to  submit  himself  to  an  absolute  sovereign  as 
protector.  According  to  some  of  our  modern  imperialists, 
the  British  realms  are  in  an  equally  parlous  condition; 
there  is  no  alternative  to  disruption  but  fusion  in  a  single 
state.  Such  logical  dilemmas  have  no  terror  for  the  historian, 
for  history  consists  for  the  most  part  of  solutions  of  logical 
impossibilities;  solvuntur  ambulando.  The  empire  is  not  in: 
the  parlous  condition  depicted :  it  will  not  split  into 
fragments  because  its  parts  decline  to  fuse.  It  lightly 
evades  the  horns  of  the  dilemma,  of  being  **  either  a 
phantom  or  the  most  intolerable  of  oppressions,"  because 
it  is  not  "  a  democracy  pretending  to  sovereignty  over 
other  democracies."  Canadians  and  AustraUans  are  not  our 
subjects,  but  our  fellow-subjects,  or  rather  partakers  in  the 
sovereignty  which  is  the  capital  of  the  empire.  The 
partnership  is  not  perfect;  but  it  is  none  the  less  real 
because  its  terms  have  not  been  stated  in  a  \\T:itten 
constitution. 


THE  BRITISH  REALMS   IN  PARLIAMENT         379 

Neither  was  it  a  phantom  that  the  crucial  test  of  the 
great  war  revealed.  For,  when  all  is  said  and  done, 
political  unity  is  a  thing  of  the  spirit,  and  not  a  bond  of 
parchment ;  and  Germany's  challenge  to  all  for  which  parlia- 
mentary government  stands  could  not  have  met  with  a  finer 
response  from  the  British  realms,  had  they  all  been  merged 
in  a  single  state.  The  heart  and  the  head  of  the  empire 
were  sound.  Its  peoples  grasped  the  fimdamental  issue  of 
the  war.  The  Germany,  which  provoked  it,  began  with  Bis- 
marck's defeat  of  a  parliament  and  its  principles,  and 
developed  a  natural  alliance,  first,  with  the  Hapsburgs  and 
then,  by  a  logical  consummation,  with  the  Turk ;  and  the 
conflict  ended,  as  it  was  bound  to  end,  in  dp';at  at  the 
hands  of  parliamentary  peoples,  after  a  str  (.^^le  in  which 
the  one  autocracy  among  them  went  to  pieces.^  Upon  those 
parliamentary  principles  the  British  empire  is  based;  it 
stands  for  the  force  of  argument  against  the.  argument  of 
force,  for  the  rule  of  law  against  the  rule  of  the  sword, 
for  popular  consent  against  the  will  of  monarchy  or 
militarism  masquerading  as  the  state.  If  the  Allies  had 
failed,  parliamentary  government  might  have  perished  from 
the  earth.  Through  their  success  peace  will  be  placed  on 
the  broad  foundation  of  common  acceptance  by  the  world 
of  principles,  dimly  discerned  in  the  middle  ages  and 
wrought  out  in  hundreds  of  parleys,  until  the  parleys 
themselves  grew  into  a  parliament  and  a  mother  of  parlia- 
ments, and  their  reason  supplanted  force  as  the  rule  of 
human  affairs. 

1  This  passage,  as  originally  written  in  August  I9i5,ran  :  "  it  will  end 
in  defeat  at  the  hands  of  parliamentary  peoples  after  a  struggle  which 
bids  fair  to  convert  the  one  autocracy  among  them  to  belief  in  responsible 
government." 


APPENDIX 

PICTURES  OF  PARLIAMENT 

The  illustrations  herein  reproduced  refer  exclusively  to 
the  development,  in  the  "  parhament  chamber,"  of  those 
"  parliaments  "  of  the  king  in  council  with  other  repre- 
sentative and  non-representative  elements  of  the  nation, 
which  in  modem  times  became  the  house  of  lords.  That 
development  is  historically  the  essential  feature  in  the 
evolution  of  the  English  parliament,  and  it  is  the  most 
difficult  to  grasp.  The  growth  of  the  house  of  commons, 
from  its  original  sessions  in  the  refectory  and  chapter 
house  of  the  abbey  to  its  transference  to  St.  Stephen's 
chapel  in  the  palace  and  subsequent  encroachment  upon 
the  neighbouring  "  parhament  chamber,"  is  another  story, 
simpler  in  its  details,  subordinate  in  its  historical,  though 
not  in  its  political  importance,  and  lacking  pictorial  repre- 
sentation until  we  come  to  the  seventeenth  century.  We 
are  here  dealing  with  the  pictorial  evidence  for  the  earlier 
stages  of  our  parliamentary  history. 

The  first  of  our  reproductions  is  the  earliest  which  pos- 
sesses much  historical  value.  There  are  pictures  of  an 
older  date  representing  the  king  in  parley  with  some  half 
a  dozen  or  more  councillors,  which  are  correctly  entitled 
"  the  king  in  parliament  "  and  are  valuable  as  illustrating 
the  fact  that  the  first  parliaments  were  simply  parleys  of 
the  king  in  council.  But  they  represent  only  the  germ, 
and  are  without  exception  centuries  later  than  the  parlia- 
mentary conditions  which  they  profess  to  portray.  Our 
first  illustration,  on  the  other  hand,  while  it  correctly  con- 
tains traces  and  relics  of  earlier  stages  of  parliamentary 
development,  is  an  exact  and  contemporary  representation 

380 


APPENDIX  381 

of  the  parliament  of  1523.  Its  date  and  provenance  can 
be  determined  with  some  precision.  It  was  first  reproduced 
b}^  Richard  Fiddes  (1671-1725)  in  his  Life  of  Cardinal 
Wolsey,  pubhshed  in  1724  (p.  302) ;  and  the  drawing,  from 
which  the  reproduction  was  made,  was  sent  to  Fiddes 
from  the  Heralds'  College  by  John  Anstis,  then  Garter 
King  of  Arms — ^in  whose  house  at  Putney  Fiddes  died  in 
1725 — with  a  long  explanatory  letter  which  is  dated  2  Jan., 
1722-3,  and  is  printed  by  Fiddes  (ib.  Collections,  pp.  108- 
14).  In  this  letter  Anstis  remarks  that  "  though  this 
draught  be  meanly  performed,  yet  it  must  be  allowed  to 
be  of  authority  .  .  .  since  it  was  designed  by  the  order 
of  the  then  Garter  King  of  Arms  and  preserved  in  a  fair 
velom  manuscript  which  hath  his  name  and  arms  in  several 
places  and  likewise  represents  him  performing  his  duty  at 
this  parliament  in  his  proper  robe  and  place."  The  "  then 
Garter  King  of  Arms  "  was  Sir  Thomas  Wriothesley  {d, 
1534) »  of  whom  Anstis  gives  an  elaborate  account  in  his 
Order  of  the  Garter  (i.,  369-73).  He  had  been  created  Garter 
in  1505  and  confirmed  in  that  office  on  Henry  VIIFs  acces- 
sion ;  he  was  father  of  Charles  Wriothesley  the  chronicler, 
and  uncle  of  Thomas  Wriothesley,  lord-chancellor  and  earl 
of  Southampton. 

The  picture  represents  the  opening  of  parliament  on 
15  April,  1523.  The  last  parliament  had  been  opened  on 
5  February,  1514-15,  but  Wolsey  was  not  then  a  cardinal, 
while  he  is  here  represented  as  sitting  above  Warliam, 
archbishop  of  Canterbury,  and  next  to  the  throne,  with 
a  cardinal's  hat  over  his  head  and  above  it  the  arms  of 
the  see  of  York  impaling  Wolsey's  own;  and  it  was  only 
after  1515  that  Wolsey  took  precedence  of  Warham.  The 
figure  standing  behind  the  traverse,  between  Wolsey  and 
the  king,  is  Tunstall,  bishop  of  London,  who  delivered  the 
opening  speech  in  1523.^  The  other  two  figures  behind 
the  archbishop's  seat  are  two  priests  bearing,  according  to 

^  Rot.  Pari.  14,  Hen.  VIII,  prefixed  to  Lords'  Journals  vol.  i.  p.  Ixxv; 
Letters  and  Papers  of  Henry  VIII,  iii.  2956.  The  Lords'  Journal  for  1523 
is  not  extant.  Wolsey,  as  legatus  a  latere,  seems  to  have  disdained  the 
parliamentary  functions  of  a  chancellor ;  hence  Tunstall's  oration. 


382  THE  EVOLUTION  OF  PARLIAMENT 

Anstis,  Wolsey's  two  crosses  as  cardinal  and  archbishop, 
and  not  one  belonging  to  him  and  one  to  Warham  (Fiddes, 
Collections,  p.  no).  On  the  front  bench  running  down 
from  the  right  of  the  throne  and  of  the  cloth  of  state  sit 
the  bishops  in  their  order  of  precedence,  and  behind  them 
the  abbots,  the  latter  extending  on  to  a  cross-bench.  Dimly 
seen  behind  that  cross-bench  are  the  commons,  standing  at 
the  bar,  with  Sir  Thomas  More,  their  Speaker  on  this  occasion, 
in  their  midst.  On  the  front  bench  stretching  down  from 
the  left  of  the  throne  sit  the  temporal  peers.  First  comes 
the  duke  of  Norfolk,  who  holds  in  his  hand  the  Lord  High 
Treasurer's  staff;  next  to  him  is  the  duke  of  Suffolk. 
There  were  only  two  dukes  in  England  in  1523,  and  only 
these  two  wear  the  four  ducal  bars  of  white  miniver  on 
their  robes.  The  earls,  who  come  next,^  have  only  three. 
The  barons  begin  on  the  cross-bench,  and  the  first  is  the 
"  premier  baron  of  England,*'  namely  the  Prior  of  St. 
John's,  who,  although  reckoned  a  spiritual  peer  in  earher 
times,  is  described  as  the  "  premier  baron  "  in  Edward  IV's 
and  succeeding  reigns  down  to  1540;  he  is  indicated  by 
his  different  robe.  The  line  of  barons  is  continued  from 
the  cross-bench  to  the  bench  behind  the  dukes  and  earls. 

Returning  to  the  cloth  of  state,  we  see  three  earls,  one  of 
them,  apparently  Worcester,  on  the  king's  right,  bearing 
the  cap  of  maintenance,  and  the  other  two,  on  the  left,  the 
sword  and  the  earl  marshal's  baton;  the  latter  was  borne 
by  a  deputy  for  Norfolk,  who  was  both  earl  marshal  and 
lord  high  treasurer.  The  two  figures  behind  the  traverse 
on  the  king's  left  are  non-episcopal  and  non-baronial  coun- 
cillors, and  to  their  left  is  apparently  a  throng  of  eldest 
sons  of  peers,  preceded  by  Garter  King  of  Arms.  On  the 
highest  of  the  four  woolsacks,  where  usually  sat  the  chan- 
cellor, are  the  two  chief  justices.  Other  judges  sit  on  the 
woolsack  running  down  from  the  right  of  the  throne,  and 
on  the  left,  according  to  D'Ewes,  who  follows  Glover,  are 

1  D'Ewes,  Journals,  p.  11;  the  figure  next  to  Suffolk  might  have 
been  Dorset,  England's  only  marquis  at  that  date;  but  he  was  serving 
on  the  Scottish  borders.  Marquises  had  only  three  bars  of  miniver,  like 
earls,  and  viscounts  only  two,  like  barons. 


APPENDIX  383 

the  master  of  the  rolls,  the  chief  baron  of  the  exchequer, 
the  king's  council  learned  in  the  law,  and  the  masters  in 
chancery.  But  D'Ewes  is  writing  a  century  later ;  and  it 
is  more  probable  that  in  this  illustration  the  occupants  of 
these  two  woolsacks  are  all  judges,  the  fourth  woolsack  being 
occupied  by  masters  in  chancery  and  king's  council,  behind 
whom  kneel  the  clerk  of  the  parliaments  and  the  clerk  of 
the  crown.  The  points  of  general  interest  are  :  (i)  the  pre- 
eminence of  the  crown,  which  Henry  VIII  further  empha- 
sised in  1539  by  enacting  that  no  one  not  a  member  of  the 
royal  family  should  presume  to  sit  on  the  cloth  of  state; 
(2)  the  inner  ring  or  square  formed  by  the  council  in  parlia- 
ment; the  specially  summoned  spiritual  and  temporal 
peers  are  accretions  on  that  parhament  of  the  council, 
which  Maitland  has  called  the  core  of  every  session ;  (3)  the 
presence  of  the  commons,  headed  by  the  Speaker,  who 
alone  and  for  himself  alone  claims  liberty  of  speech  in 
these  parhaments ;  and  (4)  this  scene  is  not  laid  at  West- 
minster, but  at  Blackfriars,  where  the  parliament  of  1523 
sat  until  its  transference  to  Westminster  in  July.  Parlia- 
mentary paraphernalia  were  still  comparatively  simple,  and 
could  be  carted  without  difficulty  from  one  meeting-place 
to  another. 

Our  second  illustration  can  be  dated  as  precisely  as  the 
first.  It  is  taken  from  Robert  Glover's  De  Nohilitate 
Politica  vel  Civili,  which  was  edited  from  his  MS.  and  pub- 
lished by  his  nephew,  Thomas  Milles,  in  1608,  folio.  Glover 
was  Somerset  herald,  and  both  Camden  and  Dugdale  owed 
a  good  deal  to  his  antiquarian  labours.  He  died  in  April 
1588,  and  this  picture  illustrates  his  account  of  the  opening 
of  parliament  on  22  November,  1584,  which  under  the  title 
of  Pompa  Parliamentaris  forms  part  of  the  volume  pub- 
lished by  Milles  in  1608.  The  text  of  that  tract  is  the 
best  commentary  on  the  illustration^  although  some  ad- 
ditional light  is  thrown  by  the  account  of  Elizabethan 
parliamentary  ceremonial  which  Sir  Simoads  D'Ewes  in- 
corporates in  his  Journals  (pp.  11-12). 

There  are  notable  changes  since  1523.     The  abbots  and 


384  THE  EVOLUTION  OF  PARLIAMENT 

prior  of  St.  John's  have  disappeared ;  there  is  no  cardinal, 
and  no  place  for  archbishops  on  the  cloth  of  state;  and 
monarchy  is  still  more  aloof  than  it  was  in  the  early  years 
of  Henry  VIII,  while  his  statute  of  1540  has  given  secre- 
taries of  state  and  other  non-baronial  councillors  places 
on  the  woolsacks.  The  scene  now  is  laid  in  the  Painted 
Chamber,  which  ran  east  and  west  at  right  angles  to  the 
old  house  of  lords  (see  plate  5) ;  the  throne  was  at  the  west 
end,  which  the  queen  approached  through  her  majesty's 
robing-room ;  and,  as  the  shadows  indicate,  the  south  side 
of  the  chamber  was  on  her  right.  Immediately  on  her 
right  stands  the  lord  chancellor,  then  Sir  Thomas  Bromley, 
and  on  the  left  Lord  Burghley  as  lord  high  treasurer.  To 
the  right  of  the  chancellor  stand  a  group  of  proceres  (pre- 
sumably councillors),  to  the  left  of  the  treasurer  some 
eldest  sons  of  peers.  The  cap  of  maintenance  is  borne 
by  the  marquis  of  Winchester,  the  marshal's  baton  by  the 
earl  of  Worcester  vice  the  earl  of  Shrewsbury,  who  had 
been  created  earl  marshal  in  1573,  and  was  present  on  this 
occasion,  but  was  disabled  by  gout.  On  the  queen's  left 
was  the  earl  of  Kent,  bearing  the  sword,  and  apparently 
the  earl  of  Leicester,  the  lord  steward,  with  Garter  King  of 
Arms  to  flank  him.  The  upper  woolsack  has  by  this  time 
been  monopolised  by  the  chancellor,  and  is  called  his 
seat,  though  when  the  queen  is  present  he  stands  at  her  right 
hand.  Glover  does  not  specify  the  places  on  the  two  side 
woolsacks,  beyond  saying  that  on  them  sat  the  master  of 
the  rolls,  the  queen's  secretaries,  the  judges,  the  barons  of 
the  exchequer,  and  the  counsel  learned  in  the  law;  but 
D'Ewes  avers  that  on  the  woolsack  to  the  right  "  of  the 
Estate  "  [i.  e.  the  throne),  which  he  wrongly  identifies  with 
the  north  side  of  the  chamber,  sat  the  two  chief  justices 
and  other  judges,  and  on  the  left  side  the  master  of  the 
rolls,  lord  chief  baron,  the  queen's  learned  counsel  and 
others.  He  then  makes  the  confused  and  contradictory 
statement  that  ''  all  these  may  properly  be  said  to  sit  on 
the  inner  side  of  the  woolsacks,  and  the  queen's  learned 
counsel  on  the  outside  next  the  earls.    The  masters  of  the 

\ 


APPENDIX  385 

chancery  sat,  two  on  the  same  side,  and  two  on  the  other 
side,  next  the  bishops."  He  only  accounts  for  two  occu- 
pants of  the  lower  woolsack,  the  clerk  of  the  parliaments 
and  the  clerk  of  the  crown,  and  assumes  that  the  kneeling 
figures,  now  increased  to  four,  were  all  clerks  to  the  clerk 
of  the  parliaments.  He  notes  the  table  which  now  first 
makes  its  appearance.  The  Speaker  on  this  occasion  was 
Sir  John  Puckering. 

Our  third  illustration  is  less  satisfactory.  It  is  the 
frontispiece  to  D' Ewes'  Journals  of  the  Parliaments  of 
Queen  Elizabeth,  which  were  compiled  in  1629-30,  and 
pubHshed  by  his  nephew,  Paul  Bowes,  in  1680  (2nd  ed. 
1682).  It  professes  to  represent  a  parliament  of  Elizabeth's 
reign;  but  in  spite  of  the  queen  on  the  throne  and  the 
entirely  unauthorised  location  of  Walsingham  on  her  left, 
it  illustrates  a  seventeenth-  rather  than  a  sixteenth-century 
parHament.  Neither  the  picture  nor  the  parHament  can 
be  precisely  dated;  but  the  costumes  are  those  of  the 
parliaments  of  Charles  I,  and  it  is  probably  a  fair  represen- 
tation of  a  parUament  of  that  reign.  I  am  inclined  to  think 
that  D'Ewes'  frontispiece  is  more  accurate  than  his  text 
in  identifying  the  four  occupants  of  the  lower  woolsack 
with  the  masters  in  chancery,  and  in  reducing  all  the  clerks 
to  ^e  kneeling  posture.  The  changes  since  Glover's  time 
are  :  (i)  the  appearance  of  an  official  with  the  mace  of 
the  house  of  lords ;  (2)  the  increase  in  the  number  of  barons, 
owing  to  James  I's  creations,  and  the  consequent  multi- 
plication of  the  cross-benches  and  proportionate  reduction 
of  the  conciliar  element  in  parUament ;  and  (3)  the  increase 
and  growing  emphasis  of  the  attendant  commons.  The 
Speaker  bulks  larger  than  before;  on  his  right  is  seen 
Black  Rod,  and  on  his  left  the  serjeant-at-arms  with  the 
mace  of  the  house  of  commons. 

The  fourth  illustration  is  from  the  British  Museum  Print 
Room,  and  is  a  representation  of  the  close  of  the  session, 
after  Walpole's  fall,  in  February  1742;  it  was  engraved 
and  pubhshed  in  1749  by  John  Pine,  who  had  in  1743  been 
appointed  Bluemantle  pursuivant-at-arms,  and  had  already 
c  c 


386  THE  EVOLUTION  OF  PARLIAMENT 

published  valuable  engravings  of  the  tapestries  of  the 
house  of  lords.  It  illustrates  in  a  remarkable  way  the 
constitutional  changes  of  the  Revolution,  and  exhibits 
monarchy  in  tutelage  :  so  far  from  no  one  being  permitted 
on  the  cloth  of  state  except  the  king,  he  is  overshadowed 
by  his  magnates,  and  parliament  is  swamped  with  peers. 
The  judges  and  other  elements  of  the  council  have  been 
reduced  to  a  handful  in  a  house  of  hundreds ;  but  the  peers 
themselves  are  threatened  by  the  dominating  figure  of 
Speaker  Onslow  and  the  commons  below  the  bar.  The 
scene  is  the  old  house  of  lords,  and  there  was  little  change 
until  the  fire  of  1834  led  to  the  comprehensive  rebuilding 
of  the  palace  on  the  designs  of  Sir  Charles  Barry,  and  under 
the  name  of  the  houses  of  parliament. 

The  last  illustration  is  the  plan  of  the  old  parliamentary 
buildings  before  the  fire,  made  by  the  architect  Sir  John 
Soane,  clerk  of  the  works  to  the  houses  of  parliament. 
It  is  dated  22  March,  1833,  and  was  pubhshed  in  that 
year  with  the  report  of  a  committee  of  the  house  of  com- 
mons on  the  parliamentary  buildings.  There  are  numerous 
other  sketches  and  plans  in  the  Soane  Museum  in  Lincoln's 
Inn  Fields.  The  drastic  changes  that  were  made  by  Barry's 
reconstruction  can  best  be  appreciated  by  comparing 
Soane's  plan  with  some  such  plan  of  the  modern  houses  of 
parliament  as  is  given  in  Baedeker's  London.  Westminster 
Hall  alone  remains  practically  intact.  The  position  of  the 
house  of  commons  has  been  completely  changed;  the 
king's  robing-room  remains  much  where  it  was,  but  the 
royal  gallery  has  been  interposed  between  it  and  the  new 
house  of  lords,  and  the  painted  chamber  has  disappeared. 


I 


INDEX 


Abbots,  32,  42,  46,  62,  64,  69, 
75-6,  99,  loi,  198,  207-8,  248, 
382,  384 

Absolutism,  222,  226,  228-31,  259, 

345,  355,  363-5 
Acton,  Lord,  14,  213 
Acts    of    Parliament,    public    and 

private,  130,  14 1-2,  145.     See  also 

Legislation,        Petitions,        and 

Statutes. 
Adams,  G.  B,,  6 

John,  254 

Adrian  IV,  190 
Alexander  the  Great,  4 

II  of  Scotland,  32 

VI,  Pope,  193 

J.  J..  155 

Alfred  the  Great,  5,  137 
Aliens,  9,  90,  loi,  203,  273-4 
Americans,  2,  16,  78,  229,  234-40, 

252-7,  341,  357 
Anarchy,  183-5,  217-18,  285,  350-1 
Angell,  Norman,  352 
Angevins,    6,    137,    153,    192,   228, 

240 
Anglo-Saxons,    5-7,    68,    95,    191, 

261,  359,  368 
Annates,  Act  of,  213 
Anne,  Queen,  23,  251,  261,  275 
Anselm,  Archbishop,  192 
Anstis,  John,  381-2 
Apology  of  the  Commons   (1604), 

338 
Appeals,  statute  of,  213,  272 
Appellants,  Lords,  74 
Appellate   jurisdiction,    40-1,    245, 

249,  251,  260,  307,  309-10,  312, 

369.     See  also  Writs  of  error. 
Appleby,  53 
Aristocracy,  94,  150,  258,  279,  356, 

371 
Aristotle,  14,  149,  235,  347 
Arms,  College  of,  104,  141 
Armstrong,  E.,  33 
Articuli  super  Cartas,  219,  242 
Arundel,  Archbishop,  200 
Earl  of,  306 


Athens,  149-50,  235,  341,  346 
Attainder,  62,  76,  78-9,  85,  97,  147, 

239,    247,    249,    252,    263,    265, 

270,  293 
Attorney-general,  271,  292,  294-6 
Audley,  lord  chancellor,  214 
Austin,   John,   176,  228,  233,   343, 

363 
Australia,    244,    365-7,    370,    373, 

375,  377-8 
Austria,  213,  379 
Ayremynne,  William  de,  37 

Backeleria,  114 

Bachelors  of  the  Council,  281-2 

Bacon,  Sir  Francis,  162,  174,  188, 
252,  293 

Sir  Nicholas,  23,  132,  162 

Bagnal,  Sir  Ralph,  323 

Baldock,  Robert,  30 

Baldwin,  J.  F.  v,  24,  29,  34,  40-1, 
123,  129,  245,  260,  280,  287,  292 

Ballot,  152,  371 

Banco,  de.     See  Common  Pleas. 

Bannerets,  69,  93-5,  141,  282 

Barker,  E.,  137,  151 

Baron  and  baronage,  10,  26-7,  29- 
32,  34,  41-3,  50,  66,  72,  86,  88- 
90,  93-5,  99,  101-2,  107-8,  115, 
141,  190,  202,  280,  382,  385 

Baronets,  95 

Baronies,  64-5,  88-90,  99-101,  156, 
291,  299,  307-8 

Barry,  Sir  Charles,  386 

Bates'  case,  103 

Becket,  archbishop,  190,  211 

Bedford,  318 

John,  Duke  of,  282 

Bek,  Bishop  Anthony,  138 

Benevolences,  265 

Berkeley  peerage,  100,  307 

Berkshire,  163 

Berwick,  323 

Bills,  parliamentary,  36,  58,  117, 
123,  130,  247-8,  263,  274,  294, 
308,  322,  327;  readings  of,  294, 
330.     See  also  Petitions. 


387 


388 


INDEX 


Bishops  in  parliament,  31,  46,  62, 
54_5,  y5_6,  loo-i,  106,  190,  198, 
207-8,  211,  248,  273-4,  295.  301- 

4.  311-13,  381-5 

Blackfriars,  383 

Black  Rod,  385 

Blackstone,  W.,  235-6,  238 

Bluemantle  pursuivant,  385 

Boers,  364,  372 

Boleyns,  the,  302 

Boniface  VIII,  211,  224 

Borden,  Sir  Robert,  375 

Boroughs  and  burgesses,  8-9,  11,  34. 
42,  47,  51-3.  56.  66-7.  78,  89, 
1 10-31,  139,  144.  154-9.  163-4, 
243,  272,  296,  317-^3.  329,  339 

Boroughs,  creation  of,  158-9.  162-3 

Bosworth,  battle  of,  301 

Botha,  General  Louis,  375 

Bourchier,  Sir  Robert,  23 

Bowes,  Paul,  385 

Bracton,  95 

Bradford,  Grovemor  William,  250 

Bribery,   159,   173,  217,  296,    323, 

339 
Bristol,  128,  317 

Earl  of,  306 

Brittany,  147 

Bromley,  Sir  Thomas,  23,  384 

Buckinghamshire,  162-3 

Burford,  Simon,  97 

Burghley,  Lord.     See  Cecil,  Sir  W. 

Burke,  Edmund,  43,  185 

Cabinet,  the,  18,  29,  233,  238,  244, 

250,  254,  269,  278-9,  371,  375-6 
Caesar,  4,  152,  I93,  345  362 
Calais,  162,  323 
Calvinism,  152,  178 
Cambridge,  42,  72,   163,   196,   225, 

273,  320 
Camden,  W.,  333,  383 
Canada,  361,  365-7.  37^.  373.  375. 

377-8 
Canon  law.     See  Law. 
Canterbury,  53,  318 

archbishop,  of,   31,   100,  200, 

208-10,  212,  268 

Capet,  Hugh,  137 
Capitalism,  183,  350,  357 
Carlisle,  53,  56,  140,  318 

statute  of,  202 

Carlyle,  Thomas,  i,  2,  179 
Carucage,  7,  50,  143 
Cecil,  Sir  Robert,  Earl  of  Salisbury, 
105,  162,  325,  335 

Sir  William,  Lord  Burghley, 

70,    1Q4-5,    i6o,    162,    232,    293, 
296,  321,  342,  384 


Chamber,  Exchequer.  See  Ex- 
chequer. 

Great   Council,    21,  72-3,   98, 

290,  300 

Green,  282 

Painted,  72,  142,  384,  386 

Parliament,  22,  72-4,  98,  114, 

123-4,  126,  141,  160,  208,  246, 
248,  261,  269,  282,  290,  300,  326, 
334.  380-1 

single,  20,  72-3,  117 

Star,  33.  40.  173.  245,  291,  308 

White,  72 

Chambersy    Second,    74,    241,    305, 

315.  370-3.  376 
Chancellor,  lord,  21-4,  32,  37,  57, 

66,  96,   105,   120,   123,   130,  238, 

246,  250-1,  272,  292,  295,  311 
Chancery,  24,  26,  31,  37,  39,  56,  58, 

74,  101-2,  III,  120,  129-31,    189, 

227,  245,  247,  251,  287,  292,  302, 

308,  326 
Charles  the  Bald,  86 
Charles  I,  12,  14,  132,  146-7,  151, 

167,   177-8,   180,  214,  220,  230, 

274,  276,  306,  338,  385 

II,  31,  100,  273,  309 

V,  Emperor,  32,  145 

VI  of  France,  70 

Charter,  the  Great.  See  Magna  Carta. 

Charters,  development  of,  144 

Chartists,  164 

Chaucer,  9,  157,  320 

Cheshire  and  Chester,  153, 162-3,  323 

Chivalers,  66,  69,  1 14-15,  119,  141 

Church  and  State,  13-15,  192-215, 

363-4 
»•  Courts    of    the.     See    Courts, 

Christian. 
Estates  of  the,  63-4,  69,  141, 

188 

Law  of  the.     See  Law,  Canon. 

Liberties  of  the,  14-15,  38,  97, 

146,  169-70,  187,^96,  203-4,  210, 

212-15,  227,  229,^294,  311 

Parliament  and  the,  187-215 

provincial  organisation  of,  122, 

137,  144,  192-3,  200-1,  208-9 
Churches,  Free,  187-8,  350,  363 
Churchman,  meaning  of,  188,  226-7 
Cicero,  150 

Cinque  Ports,  50,  141,  146,  318 
Circumspecte  agatis,  195,  259 
Clarendon  Code,  233 
Constitutions  of,  38,  65,  170, 

195.  311 
Clarke,  Baron,  103 
Classes,  fusion  of,  8, 13, 63,  72,  77,  80, 

140-4, 146, 148,  157,  177,  227 


INDEX 


389 


Clergy,   benefit  of,    196,    198,   204, 

212 
submission  of  the,   193,  212, 

215 
Clerks,  criminous,  38,  196-7,  259 
of  Chancery,  47,  51,  56,  58-9, 

94,  lOI 

of  Convocation,  74,  125 

of    Council,     130,    281,    285, 

294 
of  Parliament,  58,  67,  69,  73-4, 

94,    104,    113,   120,    125,    129-30, 

270-1,  293,  330.  383-5 
Cnut,  136 
Cokayne,  G.  E.,  44 
Coke,  Sir  Edward,  163,  177-8,  214, 

220,  232,  252,  279,  284 
Commines,  Philippe  de,  71 
Commission,  High,  214,  268 
Commonalty,  meaning  of,  242 
Common    Pleas,    26,    31,  37-9,  52, 

56,  139,  179,  244,  248     ^. 
Commons,  House  of,  1-2,. -12,  20,  40, 

59,  61-80,  107-31,  140,  161,  171, 

241-3,    295-7.    309-10.     316-40, 

380 
Clerk  of,  68,  74,  113,  120, 

125,  161,  326,  332 

Committees  of,  334 

Communes  or  communitates,  12,  So, 

107-8,   no,   114,    119,   128,   140, 

142,   155,   163,   186,    199,  242-3, 

340,  355 
Concilium  or  consilium,  28,  30,  32, 

37 
Conference,  Wesleyan,  45,  286 
Confirmatio  cartarum,  39,  91,  97, 219, 

242 
Congress,  American,   78,   168,  255, 

286,  348 
Conrad  the  Salic,  86 
Constantine  the  Great,  201 
Constitutions,     written     and     un- 
written, 233, '255,  378 
Contract,  the  social,  216,  378 
Convocation,  13,  74,  122,  137,  143- 

4,    197,    199,    200,    208,    211-12, 

215,268,  325,  327,  331 
Coram  rege.     See  king's  bench. 
Cornwall,  1 16-17,  146,  155,  162-3, 

227 
Corporations,  174,  176,  223,  227 
Cotton,  Sir  Robert,  32,  200 
Council  or  counsel,  in  parliament. 

See  Parliament. 

Borough,  244 

Common,  28,  35,  279,  285 

' County,  18,  244 

District,  244 


Council  or  counsel.  Great,  28-30, 
88,  90,  98,  102,  123,  242,  246, 
279-85,  291,  293,  298,  305 

King's,  27-32,  34,  39,  91,  98, 

128-32,  139,  240,  244-6,  260, 
265  ;  president  of  the,  284 

Ordinary,  284 

Parish,  6,  18,  244,  346 

Privy,  35,  102,  123,  160,  163, 

244,  246-7,  261,  279-85,  291-3. 
295-8,  305 ;  proceedings  and 
records  of,  281-2,  287 

Judicial    Committee    of, 

233.  238,  245,  367-9 

Secret,  Edward  II's,  279-81 

of  the  North,  137,  174,  245 

of  Wales,  174,  225,  245 

Councillors,  Privy,  22,  24,  159-60, 
163,  244-7,  269,  284,  288,   293, 

295-7>  311 
Court,  the,  25 
Courts  Christian,  26,  38,  53,  194-6, 

202,  204-5,  214,  246,  259 

County,  26,  108-9,  139.  152-3 

Martial,  246 

Supreme,  79,  179,  181-2,  231, 

235-56,  293,  349,  369 
Cowell,  Dr.,  32,  233,  301,  342 
Cranmer,  archbishop,  192 
Cromwell,   Oliver,  2,    179-80,    338, 

343 

Thomas,   160,  200,  223,  264, 

266,  268-9,  293,  296,  321,  334 

Crown  in  Council.     See  Council. 

Parliament. '  See  Parlia- 
ment. 

Curia  regis,  24-7,  32,  36,  40,  45,  49, 
53,  78,  80,  111-12,  139,  225,  244, 
280,  286-7 

Dalton,  James,  163 

Danegeld,  7,  50,  143 

Danes,  5,  137 

Darcy,    Thomas,    Lord,    274,    302, 

322 
Davis,  E.  Jefiries,  vii,  301 

H.W.  C,  6  * 

Debt,  jurisdiction  over,  195,  202 
Defence,  naval  and  military,  146 
Democracy,  2-4,  15,  17-18,  108-9, 

149-50,  153,  157,  183,  258,  279, 

343,  346.  366-7,  371.  378 
Derby,  318 
Despencers,  the,  93-4 
Devizes,  Richard  of,  108 
Devonshire,  134,  155,  163 
D'Ewes,  Sir  Simonds,  70,  130,  132, 

163,  293,  323,  382-5 
Diocletian,  201 


390 


INDEX 


Direct  action,  149-50,  357 
Dispensing  power,  243,  275-6,  331 
Disraeli,  342 
Divine  right  of  kings,  178-9,  214, 

216,  226 
Domesday  book,  153 
Dominicans,  150-1 
Dominus  as  a  title,  13,  72 
Dorset,  Thomas  Grey,  Marquis  of, 

382 
Drake,  Sir  Francis,  325 
Dublin,  68 

Trinity  College,  273 

Dubois,  Pierre,  222 

Dudley,  Edmund,  284 

John,  Earl   of   Warwick   and 

Duke  of  Northumberland,  76,  173, 

334 

Robert,  Earl  of  Leicester,  384 

Dukes,  68,  173 
Durham,  138,  162,  326 

bishop  of,  312 

Dynham,  Lords,  100 

Earls,  31,  34,  41-2,  46,  95,  99,  loi. 

138 
Ecdesia,  nature  of  the,    170,   188, 

198,  223 
Ecclesiastical    courts.     See    Courts 

Christian. 
Ecgberht,  137 

Economics  and  liberty,  183-6,  352 
Education  and  democracy,   157-8, 

233.  346-50,  366 
Edward  I,  4,  9-1 1,  14,  24,  28-31, 

34-6,  41-60,  62-3,  71,  73,  79,  82, 

87,  90,  92-3,  98-100,  108,  1 10-13, 
117,  127,  129-30,  133,  135,  137, 
144,  154-5,  171,  194-5,  198,  207, 

217,  230,  240,  244,  246,  258-9, 
278-9,   287,   308,  316,    320,    342, 

,   344 

— —  II,  24,  29,  37.  43,  64,  73,  82, 

88,  90-1,  93-4,  98-100,  119,  171, 
208,  279,  285 

III,  II.  22.  35,  43,  57,  59,  65, 

08,  75,  94,  98-101,  105,  107,  112, 
116,  128,  155,  171,  196,  207,  247, 
293,  335 

IV,  71,  158,  251,  264.  335 

VI,  160,  162-3,  191,  261,  323 

Egerton,  Sir  Thomas,  23 

Egypt,  3 

Eleanor  of  Aquitaine,  169 
Election,  34,  46,  52-4,  56-8,  108-9, 

151-2,   193,  222,  255,  296,   346, 

349 
episcopal,  169-70,  187,  203-4, 

206,  211,  272,  303 


Election,     parliamentary,     iio-ii, 

115-16,  124,  139,  152,  154.  158-9, 

163-4,  180,  250,  272,  295-6,  321- 

6,  328,  338-9,  346,  354,  367,  370, 

372,  376-7 
Eliot,  Sir  John,  163 
Elizabeth,  Queen,  23,  76,  83,   100, 

105,    130,   136,    142,    160-3,    172, 

261,  263,  273-5,  277,  297,   303, 

309,  323,  335-6,  384-5 
Elsynge,  Henry,  27,  68,  85,  88,  95, 

104,  128,  273-4,  288 
Emancipation,  173-4,  183,  233 
Emerson,  R.  W.,  151 
Empire,  4,  150 
British,  I,  16,  21,  26,  81,  238, 

243-4,  246,  250,  254,  343-4,  355- 

79 
Holy  Roman,   108,  201,  222, 

225,  228 
Entails,  strict,  87,  94,  102,  306 
Equality,  86, 145, 150,  167-8,  184-6, 

356 
Equity,  245,  251 
Estate,  the  royal,  69 
Estates,  the  French,  14,  66,  71,  77-8 

provincial,  71,  135-6,  138,  147 

the  Scottish,  14 

systems  of,    7-8,    13,    51,    53, 

58-80,  128,  135-6,  143,  147,  177, 

227,  229,  246,  286,  288,  290,  316, 

329,  340,  358,  374 
the  Three,  13,  20,  44,  60-80, 

117,  120-1,  124,  141-2,  144 
Etaples,  treaty  of,  260 
Eton  college,  320 
Evesham,  battle  of,  28 
Exchequer,  barons  of,  31,  97,  141, 

293,  383 

chamber,  293,  309,  334 

court,  37,  39,  42,  52,  89,  114, 

139,244,287,333 
Exeter,  318,  321,  324 

Fantosme,  Jordan,  32 
Federalism,  179,  235-57,  262 
Feudalism,  6-7,  26,  183,  206-7,  222, 

224,  227-9 
Fictions,  legal,  81-5,  100,  103,  224, 

312,  363 
Fiddes,  Richard,  381 
Fielding,  Henry,  166 
Figgis,  J.  Neville,  14,  198,  216 
Finance,  parliament  and,  9,  11,  15- 
16,    34-5,    42-3,    52-4,    1 1 7-1 8, 
120-1,   127,    132,    144,   153,  247, 
260,  262,  286,  288,  310,  329-30, 

337,  373-4 
Fines,  101-2,  115,  125,  207,  291 


I 


INDEX 


391 


Firstfniits,  204.     See  also  Annates. 
Fitzjames,  bishop,  284 
Fitzwalter  peerage,  307 
Flanders,  55 
Fleta,  24-5,  27,  32,  41,  58,  72,  121, 

130,  236,  240 
Florence,  33 
Floyd's  case,  249,  309 
Fortescue,  Sir  John,  71,  100,   133, 

217,  232,  320 
Fox,  Charles  James,  70 
France,  32,  35,  54,  61,  66,  70,  77, 

79,  132,  135,  137-8,  140-1,  147, 

176,  193,  213,  232,  266,  282,  284, 

316,  341,  343,  364 
Franchise,  the,  6,  10,  16,  154,  156, 

158,   163-5,   180,  233,   324,  338, 

347.  370 
Franchises,    medieval,    7,    10,    26, 

31,  89,  145,  170-2,  174,  215,  229. 

See  also  Liberties. 
Francis  I,  32 
Frankalmoign,  197 
Fraternity,  167-8,  174 
Freeholders,  the  forty-shilling,  108, 

III,  154,  158,  164,  320 
Freeman,  E,  A.,  134 
Free  will,  226 
Froude,  J.  A.,  i 
Fyrd,  the,  5,  134 

Gardiner,  bishop,  70,  214,  266,  268 
Garter  Idng  of  arms,   104,   381-^, 

384 
Gates,  Sir  John,  333 
Gatton,  156 
Gaveslon,  Piers,  94 
George  I,  250,  261 

II,  250,  261 

Ill,    16,    105,    164,   238,   240, 

339 
Germany,  134,  136,  138,  151,  168, 
189-90,  226,  316,  341,  350,  355, 

361-3.  377.  379 
Gettysburg,  343-4 
Gierke,  189,  220 
Gilbert,  Sir  Humphrey,  325 
Glanvill,  86-7 
Gloucester,  52,  85,  loi,  264,  318 

shire,  163 

Glover,  Robert,  293,  382-5 

Goodwin's  case,  325 

Grace,  Pilgrimage  of,  136,  191,  215, 

227,  237,  292 
Grants,  parliamentary,   43,  60,  71, 

119,   127,    143-4,  241,  262,  286, 

288-9,  329-30,  337.  356,  373-4 
Greece,  3-4,  150,  341 
Grenville,  Sir  Richard,  325 


Grey,  Sir  Edward,  375 
Grosseteste,  bishop,  203,  210 
Guienne,  71  . 

Guilds,  174-5.  227,  351,  353 

Hakewill,  W,,  68,  163,  231,  270,  323 

Haldane,  Lord,  367 

Hale,  Sir  Matthew,  31,  308 

Halifax,  174 

Hallam,  H.,  64,  144,  163 

Hamilton,  Alexander,  236 

Hampden,  John,  146,  163 

Hampshire,  53,  162-3 

Hanover,  house  of,  303 

Hardy,  SirT.  Duifus,  68,  138,  168 

Harold,  King,  137 

Hatton,  Sir  Christopher,  23 

Haxey,  Thomas,  74 

Henry  I,  42,  54,  86,  109 

II,  5,  14,  26,  32,  36,  45,  54, 

65,  89-92,  III,  127,  135,  192, 
195-6,  225,  244,  359,  367-8 

Ill,  9,  28-9,  32,  36,  49,  go,  loi. 

135,  143,  285.  335 

IV,  70,  206.  281,  308,  335 

V,  68,  70,  104,  330 

VI,  22,  72,  133,  155,  158,  171, 

217,  245,  283,  285,  294,  316, 
320 

VII,  33-4,  61,  71,  76,  100,  113, 

130,  132,  142,  145-6,  158,  162, 
173,  188,  252,  259,  263-5,  273, 
276,  284,  293,  301,  323.  331,  335 

VIII,  II,  14,  34,  76,  104,  117, 

126,  161-3.  173,  176,  191.  193. 
198,  203,  207,  212,  214-15,  225, 
230-2,  261,  264,  266-72,  276, 
283-5,  294,  301-3.  309.  321-3. 
331.  336,  342.  383-4 

Heraldry,  104 

Hereditary  right,  78-9,  82-5,  87, 
94.  99-100,  102-5,  141,  178,  220, 
232,  274,  299,  300,  304,  306-7, 
310-12,  314,  369 

Heresy  statutes,  210,  243,  267,  275 

Hertfordshire,  163 

Hildebrand,  189,  192,  207,  221 

Hobbes,  Thomas,  151-2,  185,  226, 

343.  347.  363.  365.  378 

Hohenzollems,  341 

Holland,  213 

Holies,  Denzil,  163 

Honours,  6,  89,  146 

"  Houses  "  of  Parliament,  20,  34, 
52,  59.  61,  74,  79.  117.  122-4, 
246,  272,  310,  322-4,  334.  375 

Humber,  R.,  136-7,  200 

Hundreds,  89,  109,  152 

Hunne,  Richard,  270,  301  ^ 


392 


INDEX 


Impeachment,  78-9,  93,   112,   147, 

239,  247,  249,  253.  309 
Independence,  180,  191-2,  194,  208, 

213,215,  227,  351 

War  of  American,  181,  237 

India,  10,  137,  366-7,  376 
Individualism,    143-4,    166,    174-6, 

183,  217,  219-20,  342,  353-4.  356 
Infallibility,  papal,  193 

pariiamentary,  14,  177,  231-2 

Innocent  III,  211 

Inquest,  grand,  79,  97,  309 

Ipswich,  318 

Ireland,  68-9,  71,  167,  250,  304,  342, 

344,  361,  367- 
Ireton,  General,  182 
Italy,  4,  46,  108,  189-90,  213 

James  I,  71,  106,  157,  163,  177-8, 

214,  230,  251-2,  273,  299,   303, 

308,  335,  342,  385 

II,  191,  316,  337 

Jews,  38,  42,  49,  169,  362 

John,  King,  8,  39,  86,  90,  108,  135, 

168-9,  187,  299 
Journals,  Lords',  24,   35,   68,   100, 

104,  125,  287,  330,  332,  336 
Commons',    24,    35,    113-14, 

125,   159,  263,   322,   325-6,  329, 

332 
Judges,  86-7,  iio-ii,   195,  238-9, 

244-5,  252,  259,  293-5,  301,  368 
in  parliament,  24,  31-2,  37-42, 

69.  79.  97.  112,  120,  123-4,  129- 

31,    141,    143,    178-9,   240,    248, 

250,  292,  300,  307-10,  386 
Judicium  parium,  91-3,  96-7 
Juries  and  jurors,  29,  38,  109,  134-4, 

153-4.  173,  185 
Jury,  trial  by,  27,  147 
Justices,  lords,  250 
of  the  peace.     See  Peace, 

Keighley,  Henry  of,  115 

Kent,  163,  174 

Henry  Grey,  Earl  of,  384 

Thomas,  285 

Kentish  petition,  the,  338 

King  in  parliament.  See  Parlia- 
ment. 

King's  Bench,  or  Coram  regg,  26,  31, 
35.  40.  52,  120,  128,  139,  214, 
244,  248,  260,  332 

Kirk,  the  Scottish,  14 

Kitchener,  Lord,  375 

Knights  of  the  shire,  34,  45,  51,  53, 
66-7,  69,  74-5,  77,  88,  90,  108, 
"0-31,^44,  152,  154-5,  243,  317- 
18,  329 


Knox,  John,  14 
Knyvett,  Sir  John,  23 

Labour  party,  13 

Lancashire,  162-3,  33 1 

Lancaster,  Thomas  of,  89,  91,  93-4, 

138,  305 
Lancastrians,  94,  98,  10 1,  133,  172, 

210,  217,  224,  283,  335 
Lanfranc,  archbishop,  192 
Langland,  157,  320 
Langton,  archbishop,  210 
Lansdowne,  Lord,  371 
Laud,  archbishop,  214 
Law  and  liberty,  43,  172-7,  217 
and  politics,  5,  57,  60,  92,  109, 

127-8,  148 
canon,  38,  189,  194,  201,  224- 

6,  229,  263 

civil,  194,  225-6 

common,  10,  36,  38,  138,  171, 

179-80,  229,  245,  249,  275,  309, 

359.  367-8 

divine,  64,  175,  178,  219 

— — fundamental,    91,     175,     179, 

226,  233,  241-2 

martial,  194 

natural,  176,  220,  224,  232 

of  nations,  232 

of  nature,  64,  201,  219,  232 

officers  of  the  crown,  24,   32, 

58-9,  292,  302,  311 
positive,    175,    178,   201,   219, 

220,  222,  224,  233,  286,  343 

process  of,  due,  78,  181-2,  253 

Roman,  3,  151-2,  224-5,  227, 

263,  359,  367 

Reception  of,  224-5,  263 

Statute.     See  Statutes. 

Leake,  treaty  of,  93 

Lee,  Rowland,  225 

Legatus  a  latere,  200,  209,  211,  224 

natus,  loo-i,  211,  224 

Legislation,  methods  of,  34,  75-6, 

117,  120,  124-5,  137,  129-30,  142, 

144-5,  194,  209-10,  219,  222,  224, 

240-1,   243,   248,    251-2,   262-4, 

270,  275,  288,  327-32,  347,  360-1 
Legnano,  battle  of,  108 
Leicester,  158,  264,  318 
Lenthall,  Speaker,  272 
Levellers,  the,  182 
Leviathan,  Hobbes',  229,  343 
Liberties,  medieval,   6,    10-12,    89, 

109,    145,    166-76,    187,    220-1, 

226,  229,  265 

of  the  Fleet,  169 

parliamentary,   12,   126,   178- 

81,  322 


INDEX 


393 


I 


Liberty  and  empire,  150 

and  parliament,  1 66-86 

and  property,   143,   166,   182, 

185,  221 

civil  and  religious,  180,  236 

economic,  182-3 

equality,  and  fraternity,  167, 

184 
modem,  4,  10,   12,  146,  166- 

86,  220,  234,  351-2 

political,  236 

Lille,  86 

Lincoln,  56,  153,  318 

Abraham,  18,  343-5,  359 

bishop  of,  50 

parliament  of,  37,  56,  115 

shire,  162 

Localism,  medieval,  11,  16,  36,  128, 

133-4.  139-40.  146,  159,  169-70, 

175 
Local  government,  246,  250,  345-6, 

357-8 
Locke,  John,  151,  365 
London,   52-3,   56,    108,    112,    162, 

174,  200,  317-18,  332,  365 
bishop  of,  312 

Long,  Thomas,  323 

Lords,  house  of,  20-3,  33,  34,  40, 
65-6,  73,  80-106,  122,  141,  161, 
180,  207,  238,  245,  251,  264,  271, 
273,  291-2,  295,  298-315,  369-77 

committee  of  privileges, 

44.  82 

Louis  XIV,  16,  220,  232 

Lowell,  A.  Laurence,  166 

Luchaire,  A.,  27,  32 

Luther,  Martin,  189,  217,  226 

Luttrell,  Q)lonel,  338 

Machiavelli,  Niccolo,  151,217, 225-6 
Mcllwain,  C.  H.,  v,  2,  34,  37,  79, 

81,  157,  174,  179,  259,  286,  331 
McKechnie,  W.  S.,  6,  86,  91 
Magna  Carta,  7-8,  lo-ii,  27-8,  30, 
39-40,  46,  48,  50,  66,  86-8,  91-3, 
97,    100,    115,    135,    143,    167-9, 

175.  179-80,  183,  187,  203,  215, 
219,  227,  230,  242,  285,  299,  320 

Magnum   Concilium.     See  Council, 

Great. 
Maidstone,  324,  326 
Maitland,  F.  W.,  v-vi,  24,  28,  30, 

33,  36,  40-^,  48,  57,  62,  67,  84, 

92,  99,  117,  157,  189-90,  195-6, 

218,  223,  287 
Makower,  F.,  195,  208,  311 
Mandamus,  27 
Mandeville,  Geoffrey  de,  138 
Mansfield,  Lord,  232 


Marsiglio  of  Padua,  198,  220,  222-4 

Marten,  Sir  Henry,  163 

Mary  I,  Queen,  136,  160,  162-3,  189, 

261,  275,  303,  332-3 

Queen  of  Scots,  220,  297,  335 

Mason,  Sir  John,  174 

Masters  in  chancery,  24,   31,  248, 

292,  294,  311,  322,  383 
Massachusetts,  236,  244,  246,  250 
May,  Erskine,  72,  118 
"Members  "  of  Parliament,  160,  231, 

271 

Election  of.     See  Elections. 

Official  Return  of,  116, 158,  316 

wages  of,  125,  152,  154-5,  171, 

317,  322-3 
Merchants  Adventurers,  128 

Estate  of,  69,  143-4,  288,  327 

Mercia,  5,  134,  137-8 

Middlesex,  162 

Milles,  Thomas,  383 

Modus  Tenendi  Parliamentum,   12, 

23,  68-9,  73-4,  77,  80,  86,  89,  95, 

104,  115,  125,  328 
Mohammedanism,  9,  340 
Monasteries,  dissolution  of  the,  106, 

227,  302-3,  306 
Monmouth,  162 
Montesquieu,  235-9 
Montfort,  Simon  de,  30,  34,  36,  45, 

79,  93,  110-13,  135 
Monthermer,  Ralph  de,  85,  10 1 
More,  Sir  Thomas,  23,  105,  133,  295, 

382 
Morton,  Cardinal,  211 
Moyle,  Thomas,  Speaker,  326 

Napoleon  I,  16 

in,  133 

Nationalism,     4-5,     9-10,     132-48, 

206,  212-15 
Neale,  J,  E.,  274 
Netherlands,  the,  135,  138,  316 
Nevilles,  the,  102 
Newark,  158-9,  273 
Newcastle,  318 
Newfoundland,  367 
New  Zealand,  365-7 
Nicholas,  II,  Pope,  192 

IV,  Pope,  193 

Nicolas,  Sir  N.  H.,  72,  234,  260,  2S1 
Nobles  and  nobility,  66,  71-2,  82-5, 

105,  115,  141,  173,  220,  312 
Norfolk,  162-3 

Duchess  of,  321 

Duke  of,  335,  3S2 

election,  250,  324 

Norman    conquest,    5-6,    86,     134, 
136-7,  141,  153.  192,  194 


394 


INDEX 


Northampton,  158, 163,  318 
Northumberland,  163 

Duke  of.     See  Dudley,  John. 

Northumbria,  5,  8,  137-8 
Norton,  Thomas,  162 
Norway,  42 
Norwich,  193,  318 
Nottingham,  140,  318 

shire,  163 

Nowell,  Alexander,  Dean,  325 

Ogle,  Arthur,  189 

Robert,  lord,  274,  302 

Oligarchy,  3,  18,  90-1,  158,  279 
Onslow,  Arthur,  Speaker,  386 

Richard,  Speaker,  272 

Orange  River  Colony,  243 
Ordainers,  lords,   35,   43,   94,   279, 

289 
Orders  in  council,  240,  243,  331 
Ordinance  v.  Statute,  243,  262 
Ordinances  of  131 1,  93-4,  97 
Oxford,  88-g,  318-19,  333 

provisions  of,  28-9,  33-4,  93 

shire,  154,  163 

university,  5,  42,  50,  163,  196, 

320 

Palatinates,  71,  138,  162,  326 
Palgrave,  Sir  F.,  47,  99,  117,  242, 

251,  270 
Palmerston,  Lord,  311 
Papal  jurisdiction,  190-1,  197,  200- 

2,  205-6,  213,  221,  268,  277 

taxation,  193,  197,  203 

Paris,  Matthew,  32,  46 
Parlements,  French,  13,  43,  61,  79, 

135.  138,  147 
Parliament,  meaning  of,  31-4,  37-8, 

46-60 
commons  in,  61-80,  107-131, 

316-40.       See     also     Commons, 

house  of. 
council  in,  24,  26,  30,  40,  50-1, 

59,  75,  79,  120-3,  130,  240-1,  246, 

278-98.     See  also  Council. 
crown  in,  21-2,  24-6,  32,  51-2, 

59,    127,    139,    142,  216,  238-40, 

258-77 

"  full,"  33,  57-8,  72 

Good,  125,  171,  196,  318-19 

high    court   of,    20-43,    61-2, 

118,  128,  132,  135,  147,  149,  157, 

182,  219,  230,  239,  247,  272,  306- 

10 

infallibility  of,  14,  177,  231-2 

— —  journals  of.     See  Journals. 
Long,  106,  129,  163,  233,  272, 

276,  309 


Parliament,  lords  in,  74,  79,  96-8, 

102,    104,   107,    121-4,   239,  241, 

262,  299-  301 
Model,    50-1,    54-5,    81,    98, 

117,  240,  287 
omnicompetence    of,    14,    50, 

111-12,  215,  230-2,  259,  277,  340, 

349,  360,  363 
peers  in,  85,  87,  91,  94-6,  121- 

3,  299-315 

privileges  of,  178-81,  338-9 

Reformation,  325 

rolls  of,  35,  287 

Scottish,  14 

sovereignty  of,  2,  175-6,  216- 

34.  343 
Parning  or  Parving,  Sir  Robert,  23 
Particularism,  146,  157,  170,  176-7, 

183,  202,  350-1,  357-8 
Patriotism,  local,  5,  7,  134,  146 
Paul's,  St.,  212 

Peace,  justices  of  the,  246,  250 
Peasants'  Revolt,  320 
Peerage  bill,  the,  103,  273,  313 
Peers  and  peerage,  20,  23,  27,  44, 

74,    81-106,    220,    273-4,    291-2, 

295,  297-315,  369,  386 
creation  of,  103-4,  106,  302-4, 

311-12,  385 

Irish,  304,  312-13 

life,  312 

of  the  borough,  86 

of  the  county,  86,  1 10 

of  parliament,  86 

of  the  realm,  86,  93-4,   iio- 

II,  141,  291 

Scottish,  312-13 

spiritual.      See    Abbots    and 

Bishops. 

temporal.       See     Earls     and 

Barons. 
trial  by,  27,   86,  91-2,  96-7, 

250 
Peine  forte  et  dure,  1 76 
Percies,  the,  102,  172 
Percy,  Sir  Thomas,  74,  190-200 
Peterborough,  174 
Peter  des  Roches,  143, 166,  344 
Peter's  pence,  204 
Petitions,  parliamentary,  11,  37-40, 

59,  61,  117,  248,  288-9,  322,  326- 

32 
clerical,    196,    203-4,    209-10, 

327,  329 
common,  11,  42,  60,  114,  118- 

20,  127-9,  145,  248,  308,  328-9 
individual,     42,     52-3,     58-9, 

117-20,   127-9,   145,  249,  264-5, 

327-31 


INDEX 


395 


Petitions,  receivers  and  triers  of,  37, 

61,  288-9 
Petre,  Sir  W.,  336 
Philip  Augustus,  49 

IV  of  France,  222 

of  Spain,  136 

Pike,  L.  O.,  23,  64,  75,  77.  84-5,  93, 

99 
Pine,  John,  385 
Pirenne,  H.,  136 

Rtt,  Wilham,  Earl  of  Chatham,  105 
the  younger,   105,   140, 

303-4,  339 
Place  bills,  237,  247,  290 
Plato,  64 

Pole,  Cardinal,  189,  223 
Pollock  and  Maitland,  6,  24,  41,  62, 

87,  91.  95 
Poll-tax,  155 
Portsmouth,  318 
Powers,  separation  of,  24-5,  229- 

30,  234-57,  298 
Poynings'  law,  252,  294 
PrcBmunientes  clause,  65,  208 
Praemunire,  statutes  of ,  76,  187,  189, 

200,  202-3,  205,  214 
Predestination,  178 
Prerogative,  royal,  31,  228,  234 
Primogeniture,  41,  105-6,  178,  306, 

310,  314,  369 
Proclamations,  243,  262,  274,  331 

statute  of,  266-8,  274,  276 

Proctors,  clerical,  13,  65,  69,  74-5, 

122,  198-200,  208-9 
Prohibitions,  190,  204,  214 
Protestantism,  76,  190-1,  201,  211, 

216,  275,  337 
Provinces,  ecclesiastical,   122,   144, 

200 
Provincialism,  134-8,  140,  178 
Provisors,  statutes  of,  76,  189,  200, 

202-3,  206 
Provisos  to  bills,  130,  274,  294 
Proxies,  peers',  273-4 
Prynne,  William,  79 
Puckering,  Sir  John,  23,  274,  385 

Quia  Emptores,  49 
Quo  warranto,  11 

Racialism,  16,  372 
Rainsbo rough.  Colonel,  182 
Raleigh,  Sir  Walter,  177,  325 
Ranke,  L.  von,  136 
Reading,  324,  338 
Rebellion,  the  Great,  213-14 
Recorders,  154 

Referendum,  2,  4,  17-18,  no,  348- 
9,  357 


Reform  Acts,   165,   167,  233,  258, 

260,  314,  340 
Reformation,  the,  14,  161,  178,  190, 

192,    195,    198,    212-13,    215-16, 

224,  259,  273,  287 
Regnum  and   sacerdotium,    189-90, 

I95»  198,  220,  222-3,  259 
Reichstag,  3,  136 

Religion,  3,  9,  166,  168-9,  212,  361 
Remonstrance,  Grand,  276 
Renaissance,  the,  224-5 
Representation,  3-4,   15,   17,  33-4, 

43-5.  53-5.  58,  62,  90,  109,  112, 

149-65,  233,  244,  317-20,    357-8 

clerical,  198 

Requests,  court  of,  40,  308 
Responsible    government,    12,    15, 

17,  229.  233-4,  243.  247,  297,  337> 

357-8,  367,  375 
Restoration,  the,  106,  233,  307 
Revolution  of  1688,  15,  167,  179-82, 

233,  247,  260,  273,  276,  290,  307, 

331.  337-8,  342,  367.  386 
French,  77,  135,  140,  151,  167, 

213.  339,  343 
Richard  I,  108 
II,   69-70,   74.   95,    103,    125, 

133,   171,  200,  220,  224-5,  245, 

250,  281,  287,  335 

Ill,  42,  loi,  104,  132,  171 

Duke  of  York,  138,  232 

Rights  of  man,  154,  185,  220-1,  227, 

237.  354 
Rochester,  318 
Rolle,  John,  163 
Rolls,  Master  of  the,  248,  383 
Rome,  3,  9, 16,  150, 190-3, 197,  201- 

3,205-6,  208,  210,  213,  216,  221, 

276,  341,  361 
Roses,  wars  of  the,  104,  172,  224, 

283,  301 
Rouen,  86 

Round,  J,  H.,  44,  274 
Rousseau,  J.  J.,  133,  151,  167,  346 
Russell,  Francis,  322-3 
Russia,  173,  341,  361,  379 

Sadington,  Robert  de,  23 
Saint  John's,  prior  of,  382,  384 
Salisbury,  318 

bishops  of,  274,  302 

earl  of.     See  Cecil,  Robert. 

Plain,  30,  88,  90 

Salmon,  John,  bishop,  30 

Sandys,  Sir  E.,  163 

Schools,  157,  320 

Scotland,  14,  31,  35,  42,  54,  56,  116, 

136.    146-7,    167,   304,   342,   361, 

367 


396 


INDEX 


Scrope,  archbishop,  206 

Geoffrey  le,  208 

Scrutton,  T.  E.,  81,  252 
Seal,  great,  288 

privy,  101-2,  279,  285,  288 

Secretaries  of  State,  32,  247,  256, 

293.  383-4 
Selden,  John,  33,  95 
Self-government,     4,     140,     180-1, 

337-40.  344-56,  367 
Senate,  American,  370-1,  376 
Serjeant-at-arms,  385 
Serjeants-at-law,  24,  271,  292,  294, 

311 
Service  and  servitude,  185-6 
Sessions,  parliamentary,  130-2,  161- 

2,  266,  325 
Seymour,  Thomas,  Lord,  249,  309 
Shakespeare,  9,  173 
Sheriffs,    7,    26,    100,    iii,    138-9, 

158 
Shires,  5,  8,  26,  78,  89-90,  108,  iio- 

II,  134-5.  138-9,  152,  317-19 
Shrewsbury,  200,  318 

George  Talbot,  Earl  of,  384 

Shropshire,  162-3 
Signet,  royal,  102 
Six  Articles,  act  of,  268,  271,  275, 

277 
Slavery,  173,  181 
Smith,  Sir  Thomas,  100,  132,  161, 

173,  231-^,243,  263 
Smuts,  General  J,  C,  375 
Soane,  Sir  John,  386 
Sociahsm,  165,  206,  213,  351-4 
Somerset,  Protector,  76,  214,  268 
South  Africa,  366-7,  375 
Southampton,  318 
Southwark,  318 
Sovereignty,  15,  19,  26,  84,  151,  170, 

173.  175,  179,  183,  185,  213,  216- 

34,  256,  258,  262,  277,  286,  378 
Spain,  213,  220,  316 
Speaker,  the,  15,  22,  59,  113,  119, 

121,   123,   126-7,   141.   160,    179, 

199,  231,  248,  263,   269,  271-2, 

294.  316,  321-2,  324-5,  360,  381-6 
Speciale  mandatum  regis,  92 
Speech,  freedom  of,  121,  126,  274, 

326 
Spenser,  Edmund,  95 
Stafford,  318 

shire,  163 

Stamford,  321 

Stannary  court,  32 

Star  chamber.     See  Chamber. 

State,  the,  4-17,  63-4,  80,  128,  144, 

152,  177,  216,  221-3,  227-8,  232, 

286,  340-58,  361-5 


States,  city,  4,  149,  341 

States,  national,  4-6,  133,  149,  342 

Status  V.  tenure,  13,  62-4,  72,  78, 

142 
Statutes,  120,  127,  129-30,  144,  243, 

252,  275,  294,  368 

of  the  Realm,  142 

Steele,  R.,  68,  71,  266 

Stephen's,  St.,  160,  332-3,  380 

Stigand,  archbishop,  192 

Stillington,  bishop,  71 

Stow,  John,  333-4 

Stuarts,  the,  12,  100,  166,  178-81, 

225,  258,  277,  297,  309-10,  314, 
331.  335-6 

Stubbs,  bishop,  32,  39,  46,  64, 
68,  167,  192,  202,  221,  263, 
336 

Suffield,  Walter,  bishop,  193 

Suffolk,  162-3 

Charles    Brandon,    duke    of, 

382 

Henry  Grey,  duke  of,  172-3 

Supply.  See  Grants,  parliamen- 
tary. 

Supremacy,  royal,  76,  142,  212-14, 

226,  228-9,  267-8,  273,  275 
Surrey,  163 

Suspending  power,  243,  275-6 
Suzerainty,  227,  233 
Switzerland,  261 
Syndicalism,  2,  183,  351,  357 
Synods,  provincial,  201,  208-10 

Tait,  James,  28 

Tallage,  50,  53,  143,  241,  282 

Taltarum  (Talcarne)'s  case,  252 

Taunton,  321 

Taxation,  7,  34,  43,  49-50,  53-4. 
127,  132,  143-5,  153,  155-6,  171, 
241,  265,  282,  286,  288-90,  310, 
342,  344,  356,  373-4 

clerical,  65,  122,  193,  197,  208 

Tenths  and  fifteenths,  50,  11 5-1 6, 

155.  329 
Tenure  and  estate,  30,  62-4,  87-9, 
99-100,    109,    153-4,    228,    280, 

305 
Test  act,  181,  233 
Thirning,  chief  justice,  69 
Thorpe,  Sir  Robert,  23 
Tocqueville,  A.  de,  15 
Tories,  303,  313,  339 
Torrington,  154-5 
Tout,  T.  F.,  114,  116,  119 
Townshend,  A.,  104 
Trade,  regulation  of,  265-6 

unions,  356-7 

Transvaal,  243 


INDEX 


397 


Treason,  law  of,  173,  228,  267,  294, 
311.  336 

Treitschke,  H.  von,  355 

Troyes,  treaty  of,  70,  260 

Trussell,  Sir  William,  126 

Tudors,  the,  15,  loi,  104-5,  158, 
160,  172,  175,  216,  225,  228,  230, 
245,  247,  258,  283-4,  335-6 

Tunstall,  bishop,  302,  381 

Tyrannicide,  222 

UfEord,  John  de,  23 

Ughtreds,  the,  100 

Ulster,  344 

Umfravilles,  100 

Uniformity,  acts  of,  76,  83,  142 

Union  of  1603,  147 

of  1707,  147,  303,  365-6 

of  1800,  304 

South  African,  366 

United  States  of  America,  118,  167- 
8,  173,  181-2,  213,  220,  234-40, 
252-7,  262,  293,  341,  343-4.  357. 
367,  370,  376 

Universities,  growth  of,  157 

representation  of,    163,    165, 

273 
"  Upper  House,"  the,  175,  179,  290, 
296,  334.     See  also  Lords,  House 
of. 

Valenciennes,  86 

Vane,  Sir  Ralph,  333 

Venice,  150 

Vernon-Harcourt,  L.,  27,  86-7,  91-2, 

218-19,  260 
Veto,  the  royal,  76,  129,  226,  253, 

260,  271-5,  314 

Polish  liberum,  373 

Villeins,  6-7,  10,  36,  38,  50,  75, 

108,  157-8,  170,  183,  195,  320 
Vinogradoff,  Sir  P.,  34,  252 
Voltaire,  232 
Votes  and  voters,  6,  18,  154,  156, 

163-5,  180-2,  185,  324-5.  338-9, 

346-7.  357.  370-1.  376 

Wales,  31,  35,  162-3,  235,  323 
Walpole,  Sir  Robert,  313,  385 
Walsingham,  Sir  Francis,  293,  385 
War,  Hundred  Years',  9,  117,  157 
Civil,  167,  259-60,  342 

American    Civil,     167,    237, 

344 

of     Independence,     167, 

181,  237,  344 
Warbeck,  Perkin,  71 
Warham,  archbishop,  212,  381-2 
Warrants,  council,  288 


Warwick,  318 

earl  of.     See  Dudley,  John. 

Washington,  George,  236,  347 
Wentworth,  Peter  and  Paul,  162-3 
Westbury,  323 
West  Indies,  366-7 
Westminster  abbey,  chapter  house 

of,  113,  122-3,  269,  298,  319,  333, 

380 
palace  and  hall,  36-7,  52-3,  59, 

386 
West  Saxons,  5,  8,  134,  137-8 
Whigs,   the,    12,    167,    180-1,    191, 

243.290,  313.  339 
Wilkes,  John,  338 
William  I,  29,  88,  137,  191-2,  352 

Ill,  191,250,  339 

Williams,    Thomas,    Speaker,    272, 

321,  324 
Wilson,  Dr.  Thomas,  159,  273 

President  Woodrow,  237 

Wiltshire,  321 

earl  of,  331 

Winchelsey,  archbishop,   134,    190, 

211 
Winchester,  317 
bishop     of,     312.     See     also 

Gardiner. 

college,  320 

William  Paulet,  marquis  of,  384 

Wingfield,  Humphrey,  321 

Sir  R.,  284 

Winthrop,  John,  250 
Wolseley,  Sir  Garnet,  Lord,  i 
Wolsey,    Cardinal,    132-3,    211-12, 

261,  269,  284,  381-2 
Women  in  politics,  156,  195,  277 
Woolsacks,  the,  22-3,  32, 121, 247-8, 

293.  383-5 
Worcester,  318 

bishops  of,  274,  302 

Charles  and  Edward  Somerset, 

earls  of,  382,  384 

shire,  163 

Wriothesley,  Charles,  381 

Sir  Thomas,  381 

Writs  of  error,  83,  196,  260,  293-5, 

305,  309 
de  expensis,  59,  114.  116,  317- 

19 
original  and  de  cursn,  39-40, 

92,  248 
parliamentary,  13,  27,  30,  37, 

44,  47,   56-8,  65-7,   74-5.   77-8. 

81-2,  85,  87-90,  95-6,  99,  101-4, 

III,  115,  124,  139,  142,  153.  199, 

211,  262,  273-4,  291,  299,   302, 

306-7,  312,  316-18,  320-1 
Wycliffe,  John,  64,  157,  320 


398  INDEX 

Wykeham,  bishop,  211,  279,  281  York  city  of,  53,  55-6, 93,  116, 136-- 

Wykes,  T.,  46  7»  140.  241,  317-18,  333 

province  of,  197,  200,  208-10 

Yarmouth,  50,  318,  321  shire,  162-3,  172 

York,  archbishop  of,  100,  197,  209, 

212  Zwingli,  Ulrich,  192 


PwNTBD  IN  Great  Britain  by  Richard  Cr^v  &  Sons,  Limitkd^v 

BRUNSWICK   ST.,    STAMFORD   ST.,    S.B.  I,    AND    BUNGAY,    SUFFOLK.. 


RETURN     CIRCULATION  DEPARTMENT 

TO— ^      202  Main  Library 

LOAN  PERIOD  1 
HOME  USE 

2 

3 

4 

5 

6 

ALL  BOOKS  MAY  BE  RECALLED  AFTER  7  DAYS 

Renewals  and  Recharges  may  be  made  4  days  prior  to  the  due  date. 

Books  may  be  Renewed  by  calling     642-3405. 

DUE  AS  STAMPED  BELOW 

MAR  O'i  199t 

RECEIVED 

FEB  0  6  \m 

CIRCULATION  DE 

p"r. 

JAW  n  9  -Q«o 

V  ^   i^v\> 

NOV  1 9 ; 

.000 

FORM  NO.  DD6 


UNIVERSITY  OF  CALIFORNIA,  BERKELEY 
BERKELEY,  CA  94720 


U.C.  BERKELEY  LIBRARIES 


